The Washington PostDemocracy Dies in Darkness

What if the Supreme Court had had term limits from the beginning?

The Supreme Court building in Washington, D.C., on July 25. (Jim Lo Scalzo/EPA-EFE/Shutterstock)

In the past half-century, the Supreme Court has never been viewed with as much skepticism as it is now. Gallup polling, stretching back to the ruling in Roe v. Wade, shows that American confidence in the institution is at a low, with 25 percent of Americans expressing that view. That’s largely because of a significant drop in confidence among Democrats, 1 in 8 of whom now say they have confidence in the court.

Unsurprisingly, this decline in confidence has overlapped with calls to reform the court. In a new poll from the Associated Press, for example, two-thirds of Americans indicated support for instituting term limits for Supreme Court justices. It’s an idea backed by 4 in 5 Democrats — and a majority of Republicans.

In its report on the poll, the Associated Press focused in part on concerns about the ages of the justices. It’s certainly fair to question the extent to which elderly jurists largely segmented off from society can effectively reflect the views of the population, should that be the goal. But it is worth remembering that part of the reason leaders in American institutions are trending older is that America itself is trending older as the baby boom continues to shift into retirement age.

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This idea that there should be term limits on Supreme Court justices isn’t a new one. Last year, a group of Democratic legislators in the House introduced a bill that would lead to such a limit, forcing justices to retire after 18 years on the bench.

The question, then, is what such a restriction might look like. If we imposed such a limit, how might it affect the composition of the court? Beyond just implementing a boundary that many Americans support, would it shift the constitution of the court’s members significantly?

We can only approximate an answer to that question … but let’s.

The two-party era of American politics began at around the time of the Civil War. If we look at the appointments to the court since then, it looks like this, with appointees indicated with dots colored according to the nominating president.

(That little wiggle shifting over to Chief Justice John G. Roberts Jr. indicates the elevation of William H. Rehnquist from associate justice to chief justice in 1986.)

You’ll notice that justices’ terms vary widely in duration. But there are dozens who served longer than 18 years. So let’s just cut those off — chop! — and see what happens. Below we show the initial appointments in each seat since 1860 but truncating a justice’s tenure after 18 years. From that point on, we introduce a new justice every 18 years.

The result is periods in which the density of Republican appointees is far lower, as in the 1920s and 1930s. Jimmy Carter, who had no Supreme Court vacancies to fill, suddenly gets two. Other than that, though? The change often isn’t really that significant.

You’ll notice that this includes a massive, dealbreaking caveat: It doesn’t account for deaths (which might presumably occur less often with a younger bench) or resignations … which would occur a lot. After all, if you’re a conservative jurist who is termed out in the next couple of years, you’d be more likely to resign during the tenure of a Republican president than stick around and potentially see your seat filled by a Democrat. It’s hard to account for this sort of gamesmanship in our scenario, but it’s certainly something that would reshape what the court looks like.

(For the purposes of this thought experiment, we are also discounting the possibility of a hostile Senate holding the seat open for a president from their party, because what are the odds something like that could happen?)

There’s another wrinkle worth considering here. Introducing term limits might boot older judges from the court … but it would also reduce the impulse to appoint young justices. Donald Trump nominated Brett M. Kavanaugh at 53 and Amy Coney Barrett at 48 with the transparent goal of assuring they could remain as conservative voices on the court for decades to come. If no justice could serve longer than 18 years, such an impulse would be dampened.

The lesson here is, for Democrats, an unsatisfying one. The central factor in determining the constitution of the court is the occupant of the White House. In both the actual and theoretical scenarios of what the court could look like above, the 1940s are heavily blue because Democrats controlled the White House for two decades. The reason Republican appointees have a six-justice majority on the court now is that Trump was elected in 2016.

Americans support reforming the Supreme Court. But for Democrats to have seen a significant improvement in their representation in that chamber, a more important reform would have been one targeting the electoral college.