Anthony Kennedy’s retirement is a reminder that the US is unlike every other democracy in the world.
Justice Anthony Kennedy has announced his retirement. In the weeks and months to come, the battle over appointing a new Supreme Court justice will be very, very nasty. Whoever replaces him could serve on the Court for 40 years. That’s too long. It makes the stakes too high.
Unlike every other democracy in the world, the US has lifetime appointments for the Supreme Court. This means that whoever gets appointed could serve for 30 or more years — a tenure that is becoming more and more the norm.
So here’s a simple idea to dial down some of the destructive warfare of the Supreme Court confirmation process: term limits for Supreme Court justices.
Term limits would make the Supreme Court more responsive and predictable
The idea of term limits for Supreme Court justices (10, 12, or 18 years are the most common proposals) has been floating around for decades. But the increasingly contentious nature of the confirmation process should give this proposal new urgency.
For one, it would significantly decrease the likelihood of another unexpected departure, like the one caused by Justice Antonin Scalia’s death almost a year ago now. Scalia was appointed in 1986. He would have been term-limited out long before his passing. In these partisan times, justices are staying on the bench longer, not wanting to leave unless they can be replaced in a political environment that ensures a replacement on the same side. Which makes them more likely to die on the bench.
Moreover, if justices were staggered in their terms, everyone in Washington would know they’d have another opportunity to change the Court again soon enough. This regularity could also move toward more of a norm of fair play.
Instead of this predictable changeover, we have a system where, as Norm Ornstein compellingly puts it, “the policy future of the country depends as much on the actuarial tables and the luck of the draw for presidents as it does on the larger trends in politics and society.”
Longer and longer terms also mean that justices increasingly lose touch with the world outside the Court. This is a point that Justice John Roberts made in 1983: “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.”
The Economist magazine has also argued that higher turnover would make the Court more responsive:
Breathing new life into the nation’s highest court more often — even if it does not make the tribunal any less political —would bring more dynamism to the judiciary, jog the justices’ decision-making patterns and narrow, even if only slightly, the yawning gap between the enrobed ones and everyday citizen.
Erstwhile Republican presidential candidate Mike Huckabee has also argued for Supreme Court limits:
Nobody should be in an unelected position for life. If the president who appoints them can only serve eight years, the person they appoint should never serve 40. That has never made sense to me; it defies that sense of public service.
Trump’s first appointee to the court, Neil Gorsuch, was 49 at the time of this appointment, which means he could possibly serve 40 years on the bench. Plenty of people live to 89 these days. If Trump appoints another justice around the same age, that could be another potential 40-year appointment.
The public largely agrees on the value of term limits for Supreme Court justices. A Reuters poll last year found widespread support for term limits. Sixty-six percent of Democrats and 74 percent of Republicans wanted 10-year terms for justices, and 80 percent of those identified with the Tea Party–supported term limits.
While the most direct way to enact term limits would be a constitutional amendment, that’s obviously a long shot in today’s politics.
A more likely way to accomplish this was suggested by Robert Bauer in 2005: that the president agree not to nominate anybody who wouldn’t agree to serve a limited term and the Senate agree not to confirm who doesn’t agree to serve a limited term. As Bauer wrote:
The president could announce such a commitment when he introduces the candidate to the media. The Senate Judiciary Committee could ask the nominee about his views on longevity and also seek a commitment, even to a range of years. Any justice who hopes that with the passage of time such an exchange would be forgotten would likely be disappointed. Over time, a custom or expectation would develop. No law would be necessary to assure that justices act in the socially accepted fashion, just as no president served more than two terms for almost 150 years after Washington.
Understandably, Republicans have no real incentive to agree to this compromise. But a few Republicans — Jeff Flake, John McCain, Bob Corker, Susan Collins are likely suspects — could stand up and demand it as a price of supporting a nominee. It’s a chance for them to leave a true legacy.
At a time when American institutions seem increasingly fragile, a compromise like term limits for Supreme Court justices would be a much-needed vote for long-term stability. If not, the politics of Supreme Court appointments will only get worse. If Democrats ever get back unified control of government, they might be tempted to expand the number of justices to 15, as payback for the “stolen” Merrick Garland seat. Republicans should strategically de-escalate while they can.