Amy Coney Barrett’s Supreme Court confirmation is a done deal. Democrats don’t have the votes, and not enough Republicans have the principles.
Democrats’ only recourse, many have argued, is to increase the size of the court—“court-packing” is the derogatory term—to offset the illegitimate appointments of Justice Gorsuch (after the stonewalling of Should’ve-Been-Justice Garland) and Justice Barrett. Presuming they win the presidency and flip the Senate, of course.
Joe Biden has notably refused to take “court-packing” off the table, but the idea doesn’t poll well, and there are real reasons to fear it—not least the likelihood that Republicans would retaliate as soon as they’re able to do so. A better alternative is setting 18-year term limits for Supreme Court justices—effective immediately.
First, term limits, in general, are a very, very good idea. Justice Barrett may well serve until 2060. That’s ridiculous. The stakes of Supreme Court appointments are just too high, and the timing too arbitrary, leading to the life-or-death partisan battles we’ve seen in the last decade.
Term limits are also an “originalist” idea. In 1793, the life expectancy for a white male was 36.5 years. Even adjusting that upward for educated and propertied white males, no one appointed to the Supreme Court would be likely to live more than two decades. Setting a roughly two-decade term limit now would honor the Founders’ original sense of how long a justice should serve.
(Historical footnote: Chief Justice John Marshall lived to age 80 and served on the court for 29 years. But he was an exception.)
Indeed, as recently as the 1960s, the average Supreme Court justice’s term was 15 years. Today, it is 28.
“No single individual in a democracy should hold the amount of power a justice has for 30 or 35 years,” Gabe Roth, executive director of Fix the Court, a leading term-limit organization, told the Daily Beast.
In addition, too much of the current system depends on luck, which is one reason Republicans are making themselves look like idiots to put another conservative on the bench now: who knows when the next opportunity may arise? In contrast, Roth says that “term limits would bring predictability and fairness to the appointment process.”
The concept of Supreme Court term limits has been floating around for some time now, with various proposals being considered. It has bipartisan support; the 18-year figure, meant to synchronize terms with non-election years, was first proposed by Federalist Society co-founder Steven Calabresi.
Last month, after the death of Justice Ruth Bader Ginsburg, three House Democrats introduced a bill, based on Roth’s model, setting Supreme Court terms at 18 years, with terms beginning in the first and third years of a presidential term.
So far, though, all the major proposals for term limits exempt sitting justices. The reason, Roth says, is that senior justices, like RBG, are often “revered figures on left and right… and if you're introducing a bill that kicks one or two of these figures off the high court, you've already lost a large chunk of people who might go along with you.”
But that’s just politics. There’s no reason Congress couldn’t apply new limits to sitting justices. And in fact that are good reasons to do so.
If 18-year term limits were passed in January, with no exemption, Justices Clarence Thomas and Stephen Breyer would have to retire immediately.
That’s a nice ideological balance—Thomas is on the Right, Breyer on the Left—so it doesn’t reek of revenge. At the same time, since it would present President Biden and the Democrats with two vacancies, it would also offset the illegitimate confirmation of Justice Barrett.
In this way, term limits address Republican “court-packing” without the need for Democratic “court-packing.” There’s no cycle of revenge. The ideological balance before Justice Barrett’s appointment is restored, the number of justices stays at nine, and the damage to the institution is lessened.
Indeed, shifting the balance by only one justice is favorable to Republicans. After all, if Judge Garland’s stolen seat is factored in, the balance should shift by two, not one. So this proposal is even a kind of compromise, though probably it wouldn’t be viewed that way.
Now, it may seem unfair or disrespectful to suddenly shift the employment terms of sitting Supreme Court justices. There’s arguably a constitutional case that could be made as well: Article III, Section 1 of the Constitution provides that justices “shall hold their Offices during good Behaviour.” That suggests that they may not be forced to retire unless they’ve been impeached.
But both the equitable and constitutional arguments really only apply if specific justices are being singled out. If it’s a general change in policy—and one that happens to affect justices appointed by presidents from both parties—they don’t seem as persuasive.
Moreover, post-term justices could remain on the court as Senior Justices, still hearing cases involving the court’s “original jurisdiction” (cases between two states, for example), assisting in grants of review, or filling in when justices must recuse themselves. And still retaining their salary and tenure for life.
Immediate term limits are an elegantly simple solution to a uniquely complicated problem. They address the long-term brokenness of the current system, and they remedy the short-term inequity caused by the Barrett confirmation. They likely allow abortion and same-sex marriage rights to survive. (Though presumably not the Affordable Care Act, which will be struck down by the court sitting at next month’s hearings.)
And they do all this without the more radical transformation of increasing the ourt’s size, and the slippery slope that might invite. If Democrats retake the Senate, they should pass term limits without delay.