Pro:
Today’s Supreme Court is anti-democratic. A cascade of ethical scandals, decisions removed from democratic and judicial processes, political polarization, and overreach in its own power has culminated to break the once-just system. It is no wonder that, according to the Pew Research Center, more than half of Americans have lost trust in the Supreme Court and are pushing for reform.
Although a wide range of proposals exist, the most mainstream and transformative option is establishing 18-year term limits and legalizing re-appointments for the Supreme Court justices, allowing them to serve multiple terms. Under this system, vacancies would open every two years, and presidents would only have two appointments each term.
According to The U.S. Supreme Court Working Group, an academic organization, the proposal’s rise in popularity could not have come at a better time. Several justices, such as Clarence Thomas and John Roberts, will likely hold terms longer than 30 or even 40 years, giving them unprecedented power that will survive presidential re-elections. Furthermore, what makes our democracy so powerful is that we have two opposing political parties each with differing ideologies, as well as new representatives every four years.
These long-lasting justices violate the core tenets of democracy by being able to shape the law in their interests. These changes last for generations without needing to adapt to changing political climates. It erases accountability and allows for anti-democratic decision-making, as presidents increasingly support younger candidates on the expectation that they sit on the court for longer and promote that president’s political agenda for well after their term.
Polarization has created monumental stakes for each vacancy. Established laws mapped out in the Constitution, such as justices expected to be apolitical or unbiased, have been thrown out and replaced by exercises of power that upend, destroy, and outright ignore the sole purpose of having a Supreme Court, which is to deliver justice. Republican abuse of this power is evident with former President Donald Trump appointing three justices in four years, whereas previous presidents, such as George W. Bush, have only appointed two justices in eight years. We’ve seen former President Obama’s nomination denied for being “too close to the election” just for Amy Coney Barrett to be appointed by Trump a month away from the 2020 election just four years later.
According to the Brennan Center for Justice, 18-year active terms and regularized re-appointments would shut down these unconstitutional, undemocratic actions. They ensure that each president will have the same control over the Supreme Court, softening the public’s perception of the court and creating a closer tie between the Court and democratic voting processes.
The proposed policy would also encourage a more logical and fair court, as the stakes of each nomination would be lowered while simultaneously encouraging nominations based on merit instead of age. Additionally, unexpected, late-term vacancies due to death wouldn’t be as destabilizing. Instead, the proposed system allows a retired justice to temporarily step in while re-appointments are being discussed.
The policy is not just a good idea, it is a popular one. The Associated Press-NORC Center for Public Affairs Research has found that a majority of Americans support instituting term limits, even if not the particular 18-year proposal discussed above. The support is bipartisan; across every group–Democrat, Republican, and Independents–at least half of those polled were in favor. However, Democrats and Independents displayed a vastly higher number of members in favor of term limits than that of the Republican party.
This popularity is also not just limited to public perception– scholars are also in favor of the proposed change. Recently, the American Academy of Arts and Sciences released a 2023 report titled “The Case for Supreme Court Term Limits,” echoing the case for this proposal. In 2020, the National Constitution Center had swaths of both conservative and progressive scholars draft their own constitutions. Although it was not a direct question about the courts, the two groups nonetheless chose to include 18-year term limits in their widely varied drafts.
Polarization is dividing the country more than ever, and the Court is a centerpiece. Our democracy is at stake, and it is time to change the Supreme Court according to how our country has transformed since 1776.
Con:
The Supreme Court of the United States is the most powerful group of 9 people in the country. It alone has the last word on federal laws and precedents. This has led to controversy, particularly after the Court released its decision in the Dobbs v. Jackson decision, which overturned Roe v. Wade, a pivotal case that protected abortion under the 14th Amendment and provided guidelines for abortion regulation. This dramatic change in policy occurred largely because former President Donald Trump appointed three justices to the Court, giving it a two-thirds conservative majority. While the bench was originally intended to be unbiased in order to balance out the other two branches of government, there has been an increased level of political imbalance. This has led to calls for the institution of term or age limits for Supreme Court justices.
Despite these calls, having term limits for Supreme Court justices would be a terrible idea and would only increase both the rate at which the Court overturns precedent and the politicization of an already overly political Court. According to a simulation conducted by two professors of the Vanderbilt Law School, if the 18-year term limit currently being most widely supported were to have been instituted right after Roe V Wade—the decision that guaranteed the right to abortion—then Roe would have been overturned in 1987, reinstated in 2009, and then overturned again in 2017. Rather than 18-year term limits creating certainty, they would cause a rapid change in the dogma that governs America. This example demonstrates the volatility of the judicial branch if term limits were enacted, creating unnecessary turmoil and uncertainty for the American people, as newly appointed judges of different political standpoints would continually flip the decision on abortion rights.
America has seen the havoc that the Dobbs decision created in the healthcare system, as medical providers struggled to determine what reproductive care was and was not legal under various states’ laws after protections on abortion were removed. That kind of upheaval every 20 or so years by new justices would be disastrous, particularly for women attempting to navigate what would have been a constantly changing landscape of care.
The issue of abortion illustrates a larger point about the effects of term limits. The Federalist Papers, written by founding fathers Alexander Hamilton, James Madison, and John Jay, contain a warning against appointing justices for only a temporary period, which is also mentioned in Article III of the Constitution: “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” From this, it is clear that “good behavior” refers to the fact that there should not be a limit on how long a justice can hold power because as long as the elect are actively working towards justice for the country, they shouldn’t have to leave the Supreme Court due to an irritating expiration date. Simply put, term limits go against the Founding Fathers’ intentions for the Supreme Court. Their reasoning is simple: a limited term means that justices are far more likely to become politicized and attempt only to pass as many laws that support their polarized political party in the shorter amount of time they are given and thus begin to ignore their critical role in determining whether a law is constitutional.
It is the opinion of many of those wishing to implement term limits that doing so would make the Court more responsive to changes in public opinion over time, according to the Brennan Center for Justice. Not only has it been demonstrated that such limits would profoundly destabilize the decision-making of the Court, but the Court was never intended to be fully responsive to the public in the first place. According to the Harvard Kennedy School, ultimately, the Court was supposed to be free from popular influence and only use the Constitution to determine legality.
Something that would stabilize the Supreme Court is, unsurprisingly, the reality America is facing for another four years of Trump’s presidency. There has been significant talk in legal circles about the possibility of two justices, Clarence Thomas and Samuel Alito, retiring in favor of new, younger, Trump-appointed justices. If this happens, former President Trump will have appointed five members of the Supreme Court, giving him a majority that would likely last decades. Of course, although the Democrats are not looking forward to this prospect, it must be acknowledged that Trump’s appointments would likely stabilize Court precedent for years to come. The in statement of term limits would not encourage the justice that the Supreme Court is meant to carry out. Rather, it would only harm the judicial process in the United States, erasing the values of democracy and stability that this country and the court were founded to uphold.
