Supreme Court Term Limits Draw Support From Experts and Even One Justice

The justices of the U.S. Supreme Court gather for a formal group portrait in 2018. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. (AP Photo/J. Scott Applewhite, File)

WASHINGTON (CN) — Supreme Court justices do not face term limits, but experts participating in an online panel Tuesday said the reasons for ending the practice are mounting. 

“Studies have shown that if we keep on the current path in the next century, there are only going to be about 25 new Supreme Court justices and under term limits, where you have a new justice being added to the court every two years as we’ve spoken about, we’d have twice that — about 50 Supreme Court justices,” Gabe Roth, executive director of the transparency group Fix the Court, said Tuesday. “And with more justices, over time, it increases the chances that it’s not just a bunch of white dudes who were prosecutors and worked and then went to Harvard.”

The forum was hosted by the Center of American Progress, an organization advocating for progressive public policy initiatives, which published a report Monday outlining the various arguments for and against limiting a justice’s time on the high court bench.

Some of those arguments included supporting comments from the court’s current members like Justice Stephen Breyer. At a 2016 Association of American Law Schools event, Breyer said he would be open to the idea if the term was considerable — suggesting a limit be fixed at about 18 to 20 years.

Maggie Jo Buchanan, CAP’s director of legal process, wrote in Monday’s report the two main arguments against term limits for justices focus on jurisprudence instability and the corruption of the bench through incentivization near the end of a term — with justices performing in a way that positions themselves for a new position post-retirement.

“There is, of course, nothing preventing a corrupt justice from doing so now, in hopes of gaining greater fame or wealth,” Buchanan wrote. “The likelihood of this concern coming to fruition then, depends on whether the individuals appointed under a term-limit scheme are likely to be more corrupt than current justices.”

Several members of Tuesday’s panel discussed how a limit of 18 years at staggered two-year intervals would add consistency to the bench.

Through such limits, each U.S. president would have an equal and consistent number of Supreme Court justice nominees, which would be a boon to U.S. political systems, noted Jamal Greene, Dwight professor of law at Columbia University.

There would also be more flexibility for those presidents to choose from a wider and more-diverse pool of candidates through this process.              

“When you do some depoliticizing of the confirmation process, and when you know someone is only going to sit for 18 years, that affects the nature of the quality of the nominees that you look for,” Green said. “You don’t necessarily have to find someone who is 25 years old and cede them for the court so they can sit on the court for 50 years. … You have a little more flexibility to pick people because the stakes are different, to pick people who have a wider array of backgrounds. You can also pick people who are slightly older who have distinguished themselves in various points in their career.”

Caroline Fredrickson, a Brennan Center for Justice senior fellow, said there is congressional precedent for lawmakers to introduce legislation limiting Supreme Court justices’ terms, saying Congress’ involvement in restricting and outlining the federal bench’s responsibilities began early on. That role included limiting jurisdictions for courts and the number of federal judges, she said, as the body passed the Judiciary Act of 1789 — evidence of its oversight over the judiciary.

Congress has “an enormous amount of power to describe and define the role of judges and justices,” she said.

Roth spoke to the difficulties in motivating lawmakers to enact legislation restricting the terms of justices.

“There is no chance in hell” that established legislators serving either the Senate or House for decades would take up or introduce such a law, he said. Looking outside the judiciary would need to be a tool for those looking to significantly change the high court, as many members of the legislature are former federal clerks themselves and uninterested in altering what they remember as a positive experience and system.

“I think the Senate in general is technically a lost cause, this needs to start in the House,” Roth said. “The Senate — despite the fact that you know, there are a bunch of people up there that seem new and interesting and bombastic and thoughtful and all that — it’s still pro-institutionalist. It’s still slow, and it also has several members … who themselves are former judicial clerks.”

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