President Biden’s commission to study structural revisions to the Supreme Court found one potential change both Democrats and Republicans have said they could support: implementing term limits for the justices, who currently have lifetime tenure.
The opposition from both corners adds another layer of doubt that proposals laid out and debated by Biden’s Supreme Court commission will translate into tangible action in the near future.
The chief argument against term limits among Democratic lawmakers and others who have endorsed structural changes is that doing so may require a constitutional amendment — a process that is long, cumbersome and has not been successfully executed since 1992.
“It takes years to work through the state legislatures,” Sen. Elizabeth Warren (D-Mass.) said in an interview. “We don’t have years when the Supreme Court is gutting voting rights, gutting union rights, gutting the equal protection clause and signaling that it’s going to overturn Roe.”
Warren is the most recent convert in the Senate in favor of Supreme Court expansion, one of only a few Democrats there who have explicitly endorsed structural changes to the court even as the recent oral arguments in Mississippi’s abortion ban have prompted many to reconsider their stance. In an op-ed in the Boston Globe this month, Warren argued that Republican maneuvering has essentially packed the Supreme Court in their favor, and that adding justices is necessary to rebalance it. Increasing the number of justices could be done through a statute, a far simpler process than passing an amendment.
Sen. Lindsey O. Graham (R-S.C.), who led the Judiciary Committee for two years, had a concise answer to the concept of term limits for justices: “I don’t like it.”
“I like to have somebody as insulated from politics as possible,” Graham said. “I think the system has worked well. I don't see a need to change it. The reason they're talking about changing it is because, you know, Democrats lost elections, which have consequences.”
Democrats hotly dispute that they are the ones who have politicized the high court. They remain livid that, with nearly a year left in President Barack Obama’s term, then-Senate Majority Leader Mitch McConnell (R-Ky.) refused to consider Merrick Garland’s nomination to fill the seat of Justice Antonin Scalia, who died in February 2016. Democrats were similarly enraged when McConnell pushed through the nomination of Amy Coney Barrett last year, even as voting was underway that eventually denied President Donald Trump a second term.
Those who support limiting the tenure of justices — 18 years is the length often mentioned — say doing so would ensure that the Supreme Court is broadly responsive to the outcome of elections over time and would make appointments of justices more predictable, according to the commission’s findings.
Most presidents have gotten one or two chances to name a justice to the Supreme Court, while others have had upward of four opportunities and others none at all — all determined by either fate or the choices of the justices themselves. But an 18-year tenure for justices would mean that each president, in one term, would have the chance to pick two members of the court once term limits are fully implemented. (A similar proposal, but for 12-year term limits, would allow for three per presidential term.)
It would also, according to term limit proponents, help ensure that no one justice has excessive influence over time. The commission took no formal position on term limits, but noted testimony from a group of Supreme Court practitioners who concluded that an 18-year term for justices “warrants serious consideration.”
Opponents of term limits think that they would harm the ability of justices to remain independent and raise questions about the Supreme Court’s legitimacy and judicial integrity.
Yet the United States remains the only major democracy on the planet without either a mandatory retirement age or a term limit for justices who serve on its highest court, according to the commission. The average tenure of a Supreme Court member has also gotten longer with time, as justices get tapped at an earlier age and people generally live longer.
“Were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure,” University of Chicago law professor Tom Ginsburg told the commission over the summer.
In his testimony before the commission, Ginsburg noted that of the 106 justices who have left the Supreme Court since 1789, 51 of them have died while serving. The two most recent were Scalia in 2016 and Justice Ruth Bader Ginsburg in 2020, who served 30 years and 27 years on the Supreme Court, respectively.
Public polls have indicated broad support for Supreme Court term limits, with 72 percent surveyed in a Marquette Law School poll from November favoring fixed terms over lifetime appointments, compared with 27 percent of adults who opposed them.
Still, critics think term limits — which would ensure that each president has a set number of picks — would deepen the notion that Supreme Court justices are directly tied to a president and his or her party and threaten judicial independence.
“There’s probably no perfect system,” conceded Sen. John Cornyn (R-Tex.), who as a former state judge ran in judicial elections. “I think I’m sort of in the camp of, if it’s not broken, don’t try to fix it.”
While no member of the court has endorsed the idea of increasing the membership, a couple have sounded more receptive to term limits.
In 2019, Justice Stephen G. Breyer — who has faced calls from the left to retire while Democrats can still confirm his successor — said longer term limits, perhaps 18 years, “would make life easier.” He has made similar comments since then, including this year. Breyer has served on the Supreme Court since 1994.
“I wouldn’t have to worry about when I’m going to retire or not,” Breyer said. “That would be easier for me. And moreover, it must be long. And the reason that it must be long is because you don’t want somebody looking for his next job after — while he’s a member of the court.”
Justice Elena Kagan appeared similarly open to term limits in 2018.
“I think that what those proposals are trying to do is to take some of the high stakes out of the confirmation process, and certainly to the extent that that worked, and that people could feel as though no single confirmation was going to be a life-or-death issue, that that would be a good thing,” she said. “So I think it’s a balance among good goals.”
The term limits question is complicated not just by the debate over its merits, but how it would be implemented. Legal scholars and members of Biden’s commission were split on whether such a change would need a constitutional amendment, which would require the support of two-thirds of the House and the Senate, as well as three-fourths of state legislatures.
Laurence Tribe, the longtime constitutional law expert at Harvard University and a member of Biden’s Supreme Court commission, said he went into the panel’s work thinking that he supported term limits but changed his mind “because of the complexity and the enormous time period it would take to implement a term limits proposal.”
Though Tribe said he thinks life tenure for justices is “dramatically incompatible” with a government designed not to afford lifetime power to individuals, he said any federal law that tries to impose term limits would face constitutional challenges and would likely be struck down.
“The actual idea of trying to make it work is nightmarish,” Tribe said.
The White House has given no indication of what Biden plans to do with the report’s findings. In the past, Biden has resisted intense pressure from liberal activists to endorse an expansion of the Supreme Court or other structural changes, and it remains to be seen whether the commission’s findings — which did not offer recommendations to the president — would change his mind.
Meanwhile, others — including a small but growing number in Congress — are making their own case for changes.
“I just think you need to be open to a whole range of reforms, including term limits,” said Sen. Tina Smith (D-Minn.), a former Planned Parenthood executive in her home state who has also endorsed adding seats to the Supreme Court. “I’m very open to that.”