A Solution Searching for a Problem: The Case Against SCOTUS Term Limits

“The judiciary… has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.” – Alexander Hamilton, Federalist No. 78

As a constitutional attorney, I have spent my career deeply immersed in the intricate dance between law and governance. The idea of imposing term limits on Supreme Court Justices, though well-intentioned, stirs a profound concern within me. The fabric of our democracy is delicate, and the threads that bind it include the unwavering independence of our judiciary.

The framers of our Constitution, with remarkable foresight, enshrined lifetime tenure for Supreme Court Justices in Article III, asserting that they “shall hold their offices during good behavior.” This was no arbitrary choice. It was a deliberate measure to protect the judiciary from the shifting sands of political influence, ensuring that Justices could uphold the Constitution without fear or favor. Altering this framework is no small feat. It demands a constitutional amendment – a process requiring a two-thirds majority in both the House and Senate, followed by ratification from three-fourths of state legislatures. This high bar reflects the gravity of such a change and the profound impact it would have on our judicial system.

Several landmark Supreme Court cases underscore the importance of judicial independence and the reasoning behind lifetime tenure. Marbury v. Madison (1803) stands as a cornerstone of our judiciary, establishing the principle of judicial review. Chief Justice John Marshall, in his opinion, reinforced the Court’s role as a check on legislative and executive powers. This case exemplified the necessity for a judiciary that could operate free from external pressures, safeguarding the Constitution itself. In Myers v. United States (1926), the Supreme Court addressed the boundaries of executive power, asserting the President’s authority to remove executive officials. However, the decision also underscored the importance of an independent judiciary, distinct from the executive branch’s influence. United States v. Nixon (1974) showcased the judiciary’s crucial role in maintaining the rule of law, even when faced with the highest office in the land. The Court’s unanimous decision, compelling President Nixon to release the Watergate tapes, demonstrated that no one, not even the President, is above the law. Such rulings are possible only when Justices are insulated from political pressures.

Alexander Hamilton, in Federalist No. 78, eloquently articulated the rationale behind lifetime tenure. He argued that the judiciary, being the weakest of the three branches, must be protected from political influence to effectively safeguard the Constitution and individual rights. Lifetime appointments were designed to allow Justices to make decisions based on their best judgment, free from external pressures. Proponents of term limits often argue that such measures would lead to a more dynamic and contemporary judiciary. However, the risks associated with this change are significant and multifaceted. Lifetime tenure ensures that Justices are not swayed by the prospect of reappointment or political consequences. Term limits could introduce new pressures, potentially compromising the impartiality of the Court. The current system allows Justices to develop deep expertise and provides stability in the Court’s jurisprudence. Regular turnover could lead to inconsistency, undermining the Court’s role as a reliable arbiter of the law. Term limits would result in more frequent appointments, likely intensifying the politicization of the confirmation process. This could erode public trust in the judiciary and turn each nomination into a political battleground. Transitioning to a term-limited system would require detailed transitional provisions, creating practical and legal complexities. The amendment process itself is daunting, reflecting the significant and enduring nature of such a change.

Rather than imposing term limits, we can strengthen judicial ethics and accountability mechanisms. Enhanced performance evaluations and stricter recusal standards can ensure that Justices uphold the highest standards of conduct without compromising their independence. Encouraging balanced appointments that reflect a diverse range of perspectives can also enhance the Court’s representation and legitimacy, fostering public trust without necessitating term limits.

Justices Crossing Ideological Lines

Biden’s basis for term limits is clearly political. But this ignores that Justices frequently crosses ideological lines in our Nation’s most important cases.

1. Obergefell v. Hodges (2015): Chief Justice John Roberts and Justice Anthony Kennedy often lean conservative, but in this landmark case that legalized same-sex marriage nationwide, Justice Kennedy wrote the majority opinion and joined the more liberal justices. This decision was seen as a significant cross of ideological lines.

2. National Federation of Independent Business v. Sebelius (2012): Chief Justice John Roberts, a conservative, sided with the liberal justices to uphold the constitutionality of the Affordable Care Act (Obamacare). His decision was pivotal and surprised many observers given his conservative background.

3. Texas v. Johnson (1989): Justice Antonin Scalia, known for his conservative views, joined the liberal justices in a decision that upheld the right to burn the American flag as a form of protected free speech under the First Amendment. This case demonstrated his strong commitment to the principle of free speech.

4. Roper v. Simmons (2005): Justice Anthony Kennedy, often seen as a swing vote, joined the liberal justices in ruling that executing individuals who were under 18 at the time of their crimes violated the Eighth Amendment’s ban on cruel and unusual punishment.

5. Grutter v. Bollinger (2003): Justice Sandra Day O’Connor, a moderate conservative, wrote the majority opinion upholding affirmative action in university admissions, joining the more liberal justices in the decision.

6. Hamdan v. Rumsfeld (2006): Justice Anthony Kennedy joined the liberal justices in ruling that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay were unconstitutional.

7. Boumediene v. Bush (2008): Justice Anthony Kennedy again joined the liberal justices in a decision that granted Guantanamo Bay detainees the right to challenge their detention in U.S. courts, ruling against the Bush administration’s policies.

Unanimous Decisions

Historically 20-50% of decisions are 9-0 unanimous decisions. As of May 2024 a whopping 75% of decisions were unanimous. Biden’s interest in term limits stems from his belief about a small minority of decisions.

We Must Respect the Court’s Independence

The independence of our judiciary is a cornerstone of American democracy. While the idea of term limits may seem appealing, it is fraught with risks that could undermine the very foundations of our legal system. As a constitutional attorney, I believe it is crucial to preserve the system of lifetime appointments, ensuring that our Supreme Court remains an impartial and stable guardian of the Constitution. In the words of Alexander Hamilton, our judiciary must retain its role as an institution of “judgment” rather than “will.” Only then can it continue to serve as a bulwark against tyranny and a protector of our fundamental rights.