The Need for Term Limits in the Supreme Court

Article by Ravin Bhatia (Editor-in-Chief)

When President Biden unveiled his proposal for Supreme Court reform last summer, it was precisely what the Court, this country, and our democracy needed.

Indeed, the Court is weathering arguably the most severe legitimacy crisis in its 235-year history. A barrage of ethics scandals—impeachment articles were filed against Justices Samuel Alito and Clarence Thomas in July over reports that they had failed to disclose luxury trips and flights from wealthy donors—have cast a persistent shadow over its integrity. Meanwhile, landmark rulings over abortion, gun rights, and presidential immunity leave our democracy and civil liberties in a precarious position.

These have triggered historic lows in public confidence. In fact, an AP-NORC poll released in June found that just 16% of adults have “a great deal” of trust in the Court, and 70% believe that justices “are more likely to shape the law to fit their own ideologies.”

The status quo is an untenable dynamic; our nation cannot survive if the most powerful yet entirely unaccountable branch of government lacks any faith of the governed. The Court has become politicized to a breaking point, and it mandates changes. Biden’s proposal, particularly his call for term limits, more than meets the moment.

After all, at the center of the politicization of the Court is the very idea that was meant to insulate it from politics: lifetime tenure. In theory, lifetime tenure is a brilliant concept: shield justices from external political pressure and, accordingly, they shall act impartially. But in reality, it is little more than an anachronism, a vestige of an era when life spans were shorter and justices’ average length of service was about 15 years.

Now, as justices begin to serve for decades and opportunities to nominate them become ever more unpredictable, the principle of lifetime tenure has ensured that the confirmation process is rife with partisanship. There was once a time where a near-unanimous vote to confirm a nominee was hardly unordinary. Ruth Bader Ginsburg was confirmed 96-3 in 1993. No senator voted against Sandra Day O’Connor’s nomination in 1981. The same is true of Anthony Kennedy, who was confirmed 97-0 in 1988.

But I’ve never seen anything like that. At 17 years old, I have witnessed four confirmations, each of unmistakably higher stakes than the last. I have seen political gamesmanship and disturbing subversions of tradition, whether that be Senate Republicans refusing to hold hearings in 2016 for Obama appointee Merrick Garland, citing the upcoming presidential election, or those same Republicans sprinting through those of Amy Coney Barrett in 2020, using the same logic to justify their unprecedented reversal.

Term limits, with staggered openings every two years, would guarantee each president an opportunity to nominate two justices in a single four-year term, regularizing the process. After all, is it not somewhat foolish that a single president nominates three times more justices than his successor? Or that some nominate three or four, while others don’t nominate any? Nominating a justice to the Supreme Court is a responsibility that all presidents should share, not a privilege that only the luckiest ones may indulge.

It is not as though lifetime tenure is a popular concept, either. The United States is the world’s only major democracy without term limits or a mandatory retirement age. Within our own nation, 47 states have adopted term limits for their high court judges; though Massachusetts and New Hampshire have not, they have imposed a mandatory retirement age of 70. Meanwhile, term limits enjoy broad popular support among Americans: a YouGov survey from July found that 70% of Americans were either “strongly” or “somewhat” in favor. Even 56% of Republicans, according to the survey, backed them! Could this plan make any more sense?

Expectedly, President Biden’s plan was dismissed by Congressional Republicans as a petty response to their dissatisfaction with the Court’s recent, decidedly conservative decisions. Johnson claimed on X that it would “erode the rule of law.” During an interview with CBS’ “Face the Nation,” Lindsey Graham, the ranking member of the Senate Judiciary Committee, claimed that Biden “wants to destroy the Court.” Mitch McConnell, the architect behind the Garland debacle, compared the plan to the Jan. 6 insurrection.

Their outrage is remarkable, considering that just a few years ago, the shoe was on the other foot. In fact, in 2016, Marco Rubio called for a convention of states to pass term limits for justices. In 2015, in the aftermath of the Obergefell ruling that legalized same-sex marriage, Ted Cruz proposed a constitutional amendment providing for “periodic judicial-retention elections.” I wish I was surprised at the ideological flip-flopping, but it has merely become par for the course for Congressional Republicans.

Term limits know no party; they are necessary either way, whether they are endorsed by Republicans or Democrats. And it’s time to adopt them, to safeguard democracy and rebuild trust in our land’s highest court—because time is running out.