A Political Football? The Fight Over Supreme Court Term Limits
Who wants Supreme Court term limits, who opposes them, and why the fight is as much about power and elections as it is about the law.
Imagine a job you can keep as long as you like, with only one way to be forced out: impeachment by Congress. That is the deal for a Supreme Court justice, and it is why every vacancy becomes a high-stakes political fight. Term limits, such as a retirement age of 75 or 8- or 16-year terms, are popular with voters and keep coming back as a campaign issue, yet they almost never become law. Why? Here is what the Constitution, Congress’s legal researchers, and legal scholars say about the politics: who benefits, who resists, and whether the whole thing is just a political football. This is the politics of. Supreme Court term limits.
Is this just a political football?
Many skeptics say yes. The argument goes: politicians know term limits can’t pass, but raising the issue is a good way to energize voters. The sources don’t prove anyone’s motives, but the track record supports that view.
The odds are long, and everyone knows it. Professor William Ross notes that proposals to limit justices’ terms have been floated for at least two centuries and that hundreds of bills have been introduced in Congress. Most were “dead on arrival,” and the proposals have never made significant headway. A constitutional amendment needs two-thirds of both houses of Congress and three-quarters of the states. [6] When President Biden proposed 18-year limits in 2024, House Speaker Mike Johnson immediately called the reforms “dead on arrival.”
· Interest rises when the Court makes people angry. Ross says support for term limits has been most frequent when the Court’s decisions have been most controversial. Progressives and unions backed it when the Court struck down economic regulations, and conservatives backed it when the Court turned liberal under Chief Justice Earl Warren. Support has risen sharply in recent years, when conservatives have held a six-to-three majority. Because the plans grow out of opposition to the Court’s direction, he says they nearly always carry the baggage of a partisan agenda, even though they are neutral on their face.
· The issue is popular with voters. A Marquette Law School survey found 73% of Republicans, 71% of independents, and 87% of Democrats favor term limits. The Brennan Center also argues that the Court has become a bigger issue for Democratic voters than for Republican voters for the first time in decades. That makes it an attractive campaign topic, regardless of its chances of passage.
Supporters push back on the cynical reading. They see term limits as a real fix for a real problem: unpredictable vacancies and strategic retirements. And the political football charge cuts both ways. Opponents of reform also have political reasons to call proposals dead on arrival. The fairest reading may be that both things are true. The idea has real merit, and it is also a convenient talking point for politicians who don’t expect to deliver it.
Why Congress can’t just pass a law
Probably not under ordinary law. The Constitution says federal judges “shall hold their Offices during good Behavior.” That does not say “for life,” but it has long been read that way. The Congressional Research Service, which advises Congress on legal questions, says the common reading is that Congress can remove a justice only by impeachment. Justice Brennan wrote that the clause “guarantees that Art[icle] III judges shall enjoy life tenure, subject only to removal by impeachment,” and Justice Breyer called it “the practical equivalent of life tenure.”
Impeachment and conviction is rare. The Senate has removed just eight federal judges, for things like corruption, perjury, and tax evasion. To change life tenure itself, the most direct path is a constitutional amendment.
Could a retirement age or fixed terms get around the problem?
Experts disagree on this. The Congressional Research Service reports that many observers believe Congress can’t change a justice’s tenure without amending the Constitution, though some argue that an ordinary law would suffice. No court has ruled on it, and a court could well hold that the Constitution forbids it. A later analysis noted that “most commentators agree” that an amendment would be needed.
Supporters of the law-only route have a workaround. The Brennan Center says the leading proposals wouldn’t actually remove anyone. A justice would serve 18 years in active service, then move to “senior status,” keeping the title but sitting on lower courts or filling in when another justice steps aside from a case. That would open up a seat, and the Center says it can be done by ordinary law. A presidential commission that studied the issue was split.
· Retiring at 75: Forcing a justice out at a set age clashes with life tenure, so it would most likely take an amendment.
· 8- or 16-year limits: Same problem. Only the senior-status approach is said to work by ordinary law. Most proposals use 18 years, with two new justices per presidential term.
The case for keeping lifetime appointments
· Independence. The framers wanted justices to rule without worrying about angering the president or Congress. Hamilton wrote in Federalist 78 that “nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office.”
· Experience. Some people believe life tenure supports independence and builds expertise.
· Stability. Opponents of reform say changing a long-standing system could make the Court more political, the law less predictable, and change how justices and politicians behave.
The case for term limits
· Predictable openings. Seats now open whenever a justice dies or retires, which is unpredictable and often politically charged. Term limits would put openings on a schedule.
· A Court that better matches the voters. Justices serve longer and tend to retire when a president from their preferred party is in office, so the Court can drift out of step with election results.
· Health. A justice can stay on the bench even when failing health makes the job harder.
· Public support. The Brennan Center memo cites a Marquette Law School survey in which 73% of Republicans, 71% of independents, and 87% of Democrats favored term limits.
The political objections to term limits
· It would probably take a constitutional amendment. Law professor William Ross notes that an amendment needs two-thirds of both houses of Congress and three-quarters of the states. Term-limit plans usually come from people unhappy with the Court’s direction, so they look partisan, which makes broad support unlikely.
· It could weaken judicial independence. Adam White of the American Enterprise Institute, who served on the presidential commission, says life tenure exists so justices aren’t “looking over their shoulder at what their next job is going to be.” Ross concludes the risk to independence outweighs the benefits.
· Trying it by law could spark payback. White warns that doing it by ordinary law would cause “an enormous political fight” and invite retaliation from one administration to the next.
· It could raise the stakes of every election. Anthony Marcum of the R Street Institute argues that two seats per presidential term would let a two-term president choose 44% of the Court and cause sudden swings, drawing even more political attention.
Supporters have answers. Law professor Jonathan Adler, who leans toward term limits, thinks the swing argument is overstated: a complete flip would take at least 14 years and one party holding both the White House and the Senate throughout. He adds that term limits wouldn’t necessarily have produced a very different Court recently. Still, he admits they are “certainly no panacea,” and that fights over lower-court nominees haven’t calmed down. The Brennan Center adds that a fixed schedule would reduce maneuvering over vacancies, such as justices timing retirements or Senate leaders holding seats open.
The bottom line
Lifetime tenure is built into the Constitution, and the Supreme Court has treated it that way. A retirement age or an 8- or 16-year cutoff almost certainly requires an amendment, which needs two-thirds of Congress and three-quarters of the states. That is why the debate is as much about politics as law: term limits poll well and make a handy campaign talking point, but partisan motives make broad agreement unlikely. The “senior status” idea is the most credible route by ordinary law, but no court has tested it, and it could invite payback from one administration to the next. Expect the issue to keep coming up, especially whenever the Court makes voters angry, with independence and stability on one side, and regular turnover and accountability to voters on the other.
Stuart F. James (sfj@jurispolitics.com)
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