VIEWPOINT | Compelling reasons to term limit Supreme Court justices

Guest column by David Adler, The Alturas Institute

Plummeting public approval of the U.S. Supreme Court, now at record lows, reflects in part deep-seated concerns about recent rulings that have overturned precedents that protected fundamental rights, as well as an unprecedented ruling— the creation of presidential immunity from criminal prosecution—without foundation in our constitutional architecture. It is also true that the diminished confidence of the citizenry in the nation’s highest bench is a function of the ethical lapses of some current Justices. These factors, among others, have accelerated the gathering force of calls for the imposition of term limits on the Supreme Court.

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Such proposals are not new, and they are not the exclusive property of either the Right or the Left. Indeed, scholars and commentators representing various platforms have been urging term limits for Justices for at least the past quarter-century. What’s different at this juncture, is the chorus of demands for limits emanating from rank-and-file Americans. Beyond that, legislation to limit the years of the Justices has been introduced in Congress and may be considered for further discussion, debate and hearings after the November election. President Joe Biden has endorsed the concept, and various commissions have put forth proposals for term limits.

The idea, as they say, is one whose time has come. Before considering the merits of the concept, let’s sweep away some confusion. First, the moniker, “term limits,” is a little misleading. The essence of current proposals is not to amend the Constitution, but rather to enact a statute to emphasize “case assignments” for Justices. Justices will serve a fixed term of 18 years on the High Bench, after which they will become a “senior justice.” In this capacity, they would continue to serve as Article III judges, enjoying the same salary and benefits which, the Constitution provides, cannot be “diminished during their Continuance in Office,” but they would be assigned to lower federal courts and would carry out the duties assigned to them by the active justices. Some Supreme Court Justices—David Souter and Sandra Day O’Connor, for example—volunteered as senior Article III Justices after retiring from the Supreme Court.

Congress, under Article III, section 2, and blessed with approval by the Supreme Court in Stuart v. Laird (1803), possesses broad statutory authority, exercised since the founding period, to regulate the Court’s appellate function “with such Exceptions, and under such Regulations as the Congress shall make.” Thus, Congress may limit to 18 years the automatic participation of the justices in appellate cases.  

Why 18 years? That is the average length of service on the Supreme Court since the founding period, and it is plenty long for a single justice to exert power which, increasingly, lacks accountability. For Justices appointed since 1990, however, the average is 26 years and climbing. The concern with too many years of service in any governmental position, which was the driving rationale behind Republicans’ enthusiasm for the 22^nd Amendment that limits presidents to two terms, is the aggrandizement of power, arrogance and lack of accountability.

Near the end of his second term as president, Thomas Jefferson was urged to seek a third term. He declined because, like George Washington, eight years in office was sufficient. He expressed concern that if the services of the president “be not fixed by the Constitution, or supplied by practice, his office, nominally for years, will, in fact, become for life.” History, he said, “shows how easily that degenerates into an inheritance.” Jefferson believed that a representative government, held to short periods of election, “is that which produces the greatest sum of happiness to mankind.”

What Jefferson said of the presidency and republicanism in general, applies to the length of service on the Supreme Court. A notable feature in the proposal is the assurance that two seats on the Court would open up in each four-year presidential term. This levels the playing field and assures the citizenry of balance on the Court, rather than control or dominance of one party or the other. Some presidents have appointed several justices while others, like Jimmy Carter, had no appointments. The goal, always, should be to appoint men and women of stature, wisdom and experience, rather than younger nominees who might further the policies and preferences of a president for decades. 

David Adler is president of The Alturas Institute, a non-profit organization created to promote the Constitution, gender equality and civic education. This column is made possible with the support of the South Dakota Humanities Council, South Dakota NewsMedia Association and this newspaper.