[Staggered 18-year terms would bring regular turnover to the
bench. The result would be a Court that better reflects prevailing
public values.]
[[link removed]]

SUPREME COURT TERM LIMITS  
[[link removed]]


 

Alicia Bannon, Michael Milov-Cordoba
June 20, 2023
Brennan Center for Justice
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ Staggered 18-year terms would bring regular turnover to the bench.
The result would be a Court that better reflects prevailing public
values. _

, BCJ/Rudy Sulgan/Getty

 

Introduction

Today’s Supreme Court has assumed a degree of power and importance
that would have been unrecognizable in the founding
era.footnote1_n4tdqay
[[link removed]]1
[[link removed]] A
recent cascade of ethics scandals has laid bare a system in which
justices wield tremendous power for decades with little
accountability,footnote2_kmjz7zx
[[link removed]]2
[[link removed]] while
the Court’s rulings are increasingly unmoored from democratic values
and the principle of judicial restraint.footnote3_9fx2mfp
[[link removed]]3
[[link removed]] At
the same time, polarization among the political parties and the
justices themselves has dramatically increased the partisan stakes of
the confirmation process, leading to a broken system.footnote4_rnxtcu9
[[link removed]]4
[[link removed]] Public
trust in the Court is at a historical low.footnote5_dpe8dhg
[[link removed]]5
[[link removed]]

For all these reasons, there are growing calls for reform. Proposals
range from creating an ethics code to expanding the Court to stripping
its jurisdiction. One of the most popular options would also be among
the most transformative: establishing 18-year terms and regularized
appointments for justices. Under this system, justices would sit in
staggered terms of active service on the Court, such that a new
vacancy would open every two years. Each president would have two, and
only two, appointments during a four-year term.

This paper explains how such a reform would work, why it would bolster
the Court’s legitimacy, and how to transition from the current
system. It also discusses how the core elements of this reform could
be adopted by statute, consistent with the Constitution, by
establishing the role of “senior justice.” Among other things,
senior justices would hear cases by designation on the lower courts,
step in to hear cases on the Supreme Court in the event of a recusal
or unexpected vacancy, and assist with the management and
administration of the federal courts. This framework is similar to the
existing system of senior judges that has been in place for more than
a century and has applied to the justices since 1937.footnote6_wsk5z0z
[[link removed]]6
[[link removed]] However,
rather than leave the timing of senior status up to the justices’
discretion, under this reform Congress would create a schedule by
which justices assume senior status automatically after 18 years of
active service on the Court.

The case for reform is compelling. On average, justices today sit on
the bench for more than a decade longer than their predecessors did as
recently as the 1960s.footnote7_r09tt7o
[[link removed]]7
[[link removed]] Several
justices now on the Court are likely to hold office over as many as
nine presidential terms. Unbounded tenure allows a single justice to
shape the direction of the law for generations, without regard for the
evolving views and composition of the electorate. It puts justices in
an elite and unaccountable bubble for decades. No other major
democracy in the world provides life tenure for high court judges who
hear constitutional cases.footnote8_i7k0meb
[[link removed]]8
[[link removed]]

With today’s intense ideological polarization, every Supreme Court
vacancy also takes on monumental stakes. Exercises of raw power have
replaced long-established constitutional norms, upending the
confirmation process.footnote9_yz0rwp0
[[link removed]]9
[[link removed]] This
constitutional hardballfootnote10_u3j35qy
[[link removed]]10
[[link removed]] was
illustrated most notoriously when Republican senators refused to
consider President Barack Obama’s March 2016 nomination of Merrick
Garland, claiming that it was too close to the presidential election,
only to rush through a vote for Amy Coney Barrett in October 2020,
when early voting in that year’s presidential election had already
started.

One result of these dynamics has been that presidents have had starkly
disparate imprints on the Court. President Donald Trump appointed
three justices in four years, whereas Presidents Bill Clinton, George
W. Bush, and Barack Obama each appointed two justices in eight years.
This wide variation, as well as its impact on the development of
American law, is impossible to square with principles of democratic
legitimacy.

By contrast, with 18-year active terms and regularized appointments,
every president would have an equal imprint on the Court during a
four-year term. Such a system would enhance the democratic link
between the Court and the public, making the institution more
reflective of changing public values while preserving judicial
independence.

This reform would also encourage a better-functioning and less
politically charged confirmation process. Shorter terms would lower
the stakes of each nomination, while regularized appointments would
both encourage compromise and allow for public accountability in the
event of confirmation impasses. Regularized appointments would also
eliminate the destabilizing impact of late-term vacancies because an
unexpected death or retirement would not create a new seat to fill;
instead, a senior justice would temporarily step in. And this reform
would ensure that no individual holds largely unchecked power for
decades at a time.

Broad swaths of Americans support term limits for justices. Since
2022, several polls have found that more than two-thirds of the public
are in favor of this reform, including more than three-quarters of
Democrats, two-thirds of independents, and more than half of
Republicans. This bipartisan support is long-standing: since at least
2014, polls have consistently shown supermajority support for term
limits (see appendix
[[link removed]]).

A broad array of scholars likewise support term limits. When the
National Constitution Center convened separate groups of conservative
and progressive scholars in 2020 to draft their ideal constitutions,
both proposed 18-year terms.footnote11_970dnke
[[link removed]]11
[[link removed]] The
Presidential Commission on the Supreme Court, which was created by
President Joe Biden to evaluate options for Supreme Court reform,
described term limits as enjoying “considerable, bipartisan
support.”footnote12_i7hgym7
[[link removed]]12
[[link removed]]

The Constitution gives Congress wide latitude to determine the Supreme
Court’s structure and responsibilities. Congress should use its
power now to reform the Supreme Court.

An Increasingly Unaccountable Court

In _Federalist_ 78, Alexander Hamilton famously described the
Supreme Court as the “least dangerous branch” of
government.footnote1_tidldre
[[link removed]]13
[[link removed]] At
the time, it was an accurate description. In its first decade, the
Supreme Court heard an average of just six cases per
year.footnote2_nij05hk
[[link removed]]14
[[link removed]] The
first chief justice, John Jay, stayed on the bench for only five years
and declined to be renominated after serving as governor of New York
because, he said, the Court lacked “energy, weight, and
dignity.”footnote3_k9u00n1
[[link removed]]15
[[link removed]] In
1803, Chief Justice John Marshall asserted the power of judicial
review in _Marbury v. Madison_. Yet the Supreme Court did not strike
down another federal law as unconstitutional for more than 50 years,
when, in _Dred Scott v. Sandford_, it notoriously barred Congress
from freeing slaves within federal territories.footnote4_p25wsr4
[[link removed]]16
[[link removed]]

But times have changed. As the size, scope, and power of the federal
government expanded, first with the post–Civil War Reconstruction
Amendments and then again in the 20th century with the rise of the
administrative state and the civil rights movement, so too did the
Supreme Court’s power and national importance.footnote5_ndadep0
[[link removed]]17
[[link removed]] This
has altered the incentives of justices to stay in office and the
incentives of presidents and senators in the confirmation process. And
it has encouraged the political branches to cast aside governing norms
to secure seats on the Court — particularly as both the Court and
the political parties have grown increasingly
polarized.footnote6_gm7i6x5
[[link removed]]18
[[link removed]] Together
these trends have led to a dysfunctional system.

EXCESSIVE TERMS

Modern justices are serving unusually long terms.footnote7_pzomw1r
[[link removed]]19
[[link removed]] For
the first 180 years of U.S. history, justices served an average of
approximately 15 years. But in the 1970s, the average tenure began to
balloon. In recent years, justices have served an average of 26 years
— equivalent to six and a half presidential terms.footnote8_cu3dcrw
[[link removed]]20
[[link removed]] Justices
appointed at around the age of 50 — which includes a supermajority
of justices on the Court today — could serve as long as 35
years.footnote9_x3bp3hq
[[link removed]]21
[[link removed]] In
the future, justices are likely to serve even longer, as the average
age of retirement continues to climb while the average age of
appointment keeps declining.footnote10_el275lq
[[link removed]]22
[[link removed]]

These lengthening terms mean justices leave a substantially greater
imprint on the Court and the country than did their predecessors. At
the same time, the elected branches — and the people they represent
— have far fewer opportunities to shape the Court’s
direction.footnote11_7jgk8oo
[[link removed]]23
[[link removed]] Today
a 30-year-old has seen only 10 new justices join the Court; 60 years
ago, a person of the same age would have seen twice as
many.footnote12_nc6kxz8
[[link removed]]24
[[link removed]]

Generational seats also leave individual justices with too much power
for too long, giving nine people control over an entire branch of
government for decades. This is especially concerning because
justices, by design, enjoy a rarefied and largely unaccountable
position. As Chief Justice John Roberts once acknowledged while
working as a White House attorney, “The Framers adopted life tenure
at a time when people simply did not live as long as they do now. A
judge insulated from the normal currents of life for twenty-five or
thirty years was a rarity then, but is becoming commonplace
today.”footnote13_gf345x6
[[link removed]]25
[[link removed]] The
trend toward lengthening terms also heightens the risk that justices
will stay on the Court after their capacity as jurists begins to
decline.footnote14_5h2ed09
[[link removed]]26
[[link removed]]

STRATEGIC RETIREMENTS

Justices routinely time their retirements to create vacancies for
ideologically aligned presidents to fill. These so-called strategic
retirements enable justices to lock in their jurisprudence on the
Court for multiple generations — a practice inconsistent with the
principle that it is the values of the public, not of individual
justices, that should shape the future direction of the
law.footnote15_h1rywe8
[[link removed]]27
[[link removed]] Strategic
retirements also reinforce the view that justices are simply
extensions of the political parties that appointed them. As former
federal judge Michael McConnell observed in testimony before the
Presidential Commission on the Supreme Court, the current system
“puts unseemly pressure on sitting justices to time their retirement
to permit a president of their political party to name the
replacement.”footnote16_5i57tlr
[[link removed]]28
[[link removed]] The
practice also opens the door to inappropriate horse trading between
justices and the presidents who would fill their
seats.footnote17_bhyi007
[[link removed]]29
[[link removed]] Prior
to announcing his retirement, for example, Justice Anthony Kennedy
reportedly lobbied President Trump to include then judge Brett
Kavanaugh’s name on his list of potential Supreme Court
nominees.footnote18_fs63rco
[[link removed]]30
[[link removed]]

Strategic retirements have become the norm since the
1960s.footnote19_ksd7rq9
[[link removed]]31
[[link removed]] The
last time a justice retired when a vacancy would likely result in the
appointment of a justice with an opposing ideology was more than 30
years ago, when Justice Thurgood Marshall stepped down due to
declining health.footnote20_dwgfpfc
[[link removed]]32
[[link removed]] President
George H. W. Bush appointed Justice Clarence Thomas to replace him.

A DYSFUNCTIONAL CONFIRMATION PROCESS

Due in large part to lengthening terms and strategic retirements, the
Supreme Court confirmation process has become highly dysfunctional.
Nominees are increasingly confirmed on near party-line votes
regardless of their underlying merit or commitment to values such as
equal justice.footnote21_pjmf14x
[[link removed]]33
[[link removed]] Chief
Justice Roberts is the only sitting justice to have received the
support of a majority of senators not in the nominating president’s
political party.footnote22_671cg8a
[[link removed]]34
[[link removed]] The
confirmation process has likewise become awash in dark
money,footnote23_y52w57y
[[link removed]]35
[[link removed]] which
creates risks of conflicts of interest and contributes to an
appearance of politicization.footnote24_8t6r2cy
[[link removed]]36
[[link removed]]

The long-standing Senate norm of granting every nominee a hearing and
a vote as part of the Senate’s constitutional responsibility to
provide advice and consent on judicial appointments has been replaced
with exercises in raw power.footnote25_oxgrz3q
[[link removed]]37
[[link removed]] These
dynamics were on full display during the confirmation battles over the
Supreme Court seats vacated by Justices Antonin Scalia and Ruth Bader
Ginsburg, who both died unexpectedly during a presidential election
year. By refusing to give Merrick Garland a hearing or a vote in 2016,
the Republican Senate majority broke a norm of more than 100 years to
evaluate every Supreme Court nominee’s fitness for the
office.footnote26_8lg3t5r
[[link removed]]38
[[link removed]] (Prior
to this incident, the last time the Senate refused to take action on a
Supreme Court nominee during a legislative session was shortly after
the Civil War.)footnote27_z90nnyp
[[link removed]]39
[[link removed]] The
Republican majority ended up holding the seat open for more than a
year — until after Trump was elected and assumed the
presidency.footnote28_eb59s2r
[[link removed]]40
[[link removed]] Four
years later, when Justice Ginsburg died 45 days before Election
Day,footnote29_0a1qn8j
[[link removed]]41
[[link removed]] President
Trump and Senate Republicans rushed to fill the seat, holding a
confirmation hearing for Amy Coney Barrett while early voting was
already under way.footnote30_t6wwjig
[[link removed]]42
[[link removed]]

While the constitutional brawls over the vacancies of Justices
Ginsburg and Scalia were particularly hostile, even less bitter
confirmation fights have been characterized by vitriol and threats of
escalation.footnote31_xx95sau
[[link removed]]43
[[link removed]] If
existing dynamics continue, appointing justices during periods of
divided government may simply become impossible.

A Lack of Democratic Legitimacy

Checks and balances are deeply rooted in our constitutional system.
With respect to the judiciary, the Constitution achieves this in large
part by giving elected officials — the president, with the advice
and consent of the Senate — the power to appoint justices, so that
over time the Court’s membership reflects prevailing public
values.footnote32_7fl9byz
[[link removed]]44
[[link removed]] For
example, proponents of the Seventeenth Amendment, which provides for
the direct election of senators, advocated for its passage in part so
that the public could more directly hold the judicial branch
accountable during a period when it was perceived to be captured by
corporate interests.footnote33_5cp0qdu
[[link removed]]45
[[link removed]]

But this connection between the Court and the public has grown
tenuous, undercutting the Court’s democratic
legitimacy.footnote34_fsug732
[[link removed]]46
[[link removed]] For
instance, it is increasingly common for presidents to have no
opportunity to fill a single Supreme Court seat during a four-year
term. Up until President Jimmy Carter, this was a rare occurrence:
from President George Washington through President Gerald Ford, only 5
out of 47 presidential terms were without any Supreme Court
appointments. But in the 12 presidential terms since then, there have
already been 4 with no appointments.footnote35_n2yr65q
[[link removed]]47
[[link removed]]

There are also wide disparities in the number of seats individual
presidents have had the opportunity to fill, contributing to stark
imbalances on the Court. Beginning with President George H. W. Bush,
who appointed the longest-serving justice currently on the bench
(Justice Thomas), Republicans have won four out of nine presidential
terms and won the popular vote only twice. But Republicans have
appointed six of the current nine justices.footnote36_x3gonfn
[[link removed]]48
[[link removed]] This
supermajority has already had a transformative effect, handing down
rulings on issues including civil rights, gun rights, and abortion
that disproportionately harm vulnerable communities and are unmoored
from the values of the American public.footnote37_t8zz4br
[[link removed]]49
[[link removed]] Not
surprisingly, public confidence in the Court has
plummeted.footnote38_4rc2l4b
[[link removed]]50
[[link removed]]

A Global Outlier

Among democracies, the United States stands virtually alone when it
comes to the tenure of its justices. Today no other major democracy
gives lifetime seats to judges who sit on constitutional
courts.footnote1_io423ag
[[link removed]]51
[[link removed]] This
includes both common law countries, such as Ireland, New Zealand, and
South Africa, and civil law countries, such as France, Germany, and
Spain, as well as former U.S. territories whose constitutions were
heavily influenced by the U.S. Constitution, such as the
Philippines.footnote2_j090ru5
[[link removed]]52
[[link removed]] Even
democracies that previously granted constitutional high court judges
unbounded life tenure, including Australia, Canada, and the United
Kingdom, have since abandoned this practice.footnote3_gb30637
[[link removed]]53
[[link removed]] Nearly
all countries with specialized constitutional courts impose fixed
terms for the judges who sit on them, most of which are
nonrenewable.footnote4_gu3ixpt
[[link removed]]54
[[link removed]]

Virtually every state court system has likewise rejected life tenure.
Forty-seven states require that their supreme court justices serve for
fixed terms, subject to reelection or reappointment processes. Most
states have mandatory retirement ages. Only three provide justices
with indefinite terms, but two of them — Massachusetts and New
Hampshire — impose age limits. Only Rhode Island grants its high
court justices life tenure without an age limit.footnote5_c5ap3ge
[[link removed]]55
[[link removed]] Federal
bankruptcy and magistrate judges likewise serve fixed
terms.footnote6_wotbeh9
[[link removed]]56
[[link removed]]

Term limits are also widely used in the United States for other
important offices. George Washington famously set a two-term norm for
the presidency by leaving office after eight years. When Franklin D.
Roosevelt broke the tradition with a four-term presidency, the country
responded by passing the Twenty-Second Amendment to limit presidents
to two terms. Thirty-seven states impose term limits on governors, 15
states impose term limits on legislators, and 9 of the 10 largest
cities in the nation impose term limits on mayors.footnote7_r784hq4
[[link removed]]57
[[link removed]] Not
surprisingly, large, bipartisan majorities of Americans likewise
support term limits for Supreme Court justices.footnote8_h734yrc
[[link removed]]58
[[link removed]]

Reform by Statute: Design and Structure

Congress can address many of the Supreme Court’s structural
shortcomings and help restore public confidence in the Court by
passing a statute that establishes an 18-year active term for justices
and a regularized process for creating and filling vacancies. Specific
proposals vary.footnote1_ysf2nfb
[[link removed]]59
[[link removed]] But
at its core, this reform has two components that work in tandem:
restructuring life tenure for justices into two phases (active service
and senior service) and regularizing appointments so that there are
two vacancies per four-year presidential term.

RESTRUCTURING LIFE TENURE: THE ACTIVE/SENIOR JUSTICE MODEL

Article III of the Constitution creates a system of life tenure for
justices by providing that they “shall hold their Offices during
good Behaviour.”footnote2_horf01s
[[link removed]]60
[[link removed]] Under
the active/senior justice model, Supreme Court justices retain life
tenure, but their tenure is divided into two distinct periods: a phase
of active service lasting 18 years and a senior phase lasting for the
remainder of a justice’s life term.footnote3_u1tclfc
[[link removed]]61
[[link removed]] This
framework would apply to both associate justices and the chief
justice. After 18 years, a new chief justice would be appointed and
the prior chief would assume senior status.footnote4_yjlxbhd
[[link removed]]62
[[link removed]]

Under this system, senior justices would no longer regularly decide
cases on the Court’s docket. Instead they would be tasked with
performing other important judicial duties, including sitting by
designation to hear cases in the lower federal courts, assisting the
chief justice with management and administration of the federal
judiciary, and stepping in to hear cases on the Supreme Court’s
docket upon a recusal by an active justice or in the event of an
unexpected vacancy. Some versions of this proposal further provide
that senior justices would continue to hear cases falling under the
Supreme Court’s original jurisdiction.footnote5_1y68mxs
[[link removed]]63
[[link removed]]

This model builds off an existing system that has applied to lower
court judges for more than a century and to Supreme Court justices for
nearly 90 years.footnote6_47ou1cl
[[link removed]]64
[[link removed]] Under
federal law, judges, including Supreme Court justices, who reach age
65 with 15 years of service, or who otherwise qualify on the basis of
their age and years of service, become eligible to either retire from
their judicial office or retire from active service.footnote7_rj31p04
[[link removed]]65
[[link removed]] (They
can also continue service as an active judge.) Judges who retire from
their office are freed from the performance of judicial duties, can
pursue other employment, and receive an annuity for life equal to
their salary at the time of retirement.footnote8_xikfi1y
[[link removed]]66
[[link removed]] By
contrast, judges who retire from active service (on the lower courts
they are called “senior judges”) retain their office, continue to
perform judicial duties, and receive their salary with ongoing
increases and cost-of-living adjustments.footnote9_7hzgdw8
[[link removed]]67
[[link removed]]

To maintain senior status, judges must either carry a reduced annual
caseload in an amount equivalent to three months of work by an active
judge or perform other substantial judicial duties not involving
courtroom participation.footnote10_fto4nra
[[link removed]]68
[[link removed]] With
respect to the Supreme Court, federal law authorizes the chief justice
to designate justices who have retired from active service to sit on
lower federal courts.footnote11_axtdoo1
[[link removed]]69
[[link removed]] Justices
regularly do so. For example, since retiring from active service in
2009, Justice David Souter has sat by designation in the First Circuit
and heard more than 500 cases, and Justice Sandra Day O’Connor
regularly heard cases on federal appeals courts for more than a decade
after her retirement in 2006.footnote12_f1rtmld
[[link removed]]70
[[link removed]] Justices
who have retired from active service also regularly maintain chambers
and employ law clerks.footnote13_85lq550
[[link removed]]71
[[link removed]]

The active/senior justice model largely tracks this existing framework
but provides a fixed schedule for the assumption of senior status
rather than leaving the timing to the justices’ discretion. It also
provides senior justices with a more extensive set of responsibilities
than does the current system.footnote14_c1dignt
[[link removed]]72
[[link removed]] As
discussed later, Congress has the constitutional power to make these
changes by statute because, as in the current system, justices would
continue to hold their judicial office during good behavior.

REGULARIZING APPOINTMENTS: TWO PER PRESIDENTIAL TERM

The other main component of this reform is regularized appointments,
with a Supreme Court seat opening in the first and third years of a
president’s term. With 18-year terms and nine active justices,
Supreme Court appointments can be fully regularized so that each
president fills two, and only two, seats every four
years.footnote15_x8ojn58
[[link removed]]73
[[link removed]]

This reform creates predictability in the event of a death or
premature departure by a justice from the bench. Such occurrences
should be relatively rare given that justices would be in active
service for only 18 years; it has been more than half a century since
a justice served for less than 18 years. Still, the implementing
statute can provide that the most recently elevated senior justice
would step in under such circumstances until there is a scheduled
vacancy.footnote16_5ztggo8
[[link removed]]74
[[link removed]] (If
no senior justice is available, there would be no changes until the
next scheduled appointment.)

The thornier concern is how to harmonize a regularized appointment
process with polarized politics and recurring periods of divided
government. In light of Senate Republicans’ obstruction of Merrick
Garland’s nomination and subsequent threats of further escalation
over Supreme Court appointments, the possibility of Senate impasses
looms large.footnote17_uposcbf
[[link removed]]75
[[link removed]]

There are good reasons to believe a regularized appointment system
would help disincentivize partisan gamesmanship. First, term limits
reform would reduce the benefits of obstruction because Supreme Court
seats would no longer offer the promise of a multigenerational imprint
on the Court.footnote18_m3zdzuo
[[link removed]]76
[[link removed]] Second,
obstruction during periods of divided government would become
increasingly politically costly as the public would come to expect
that each president should be able to fill two Supreme Court seats per
term. Obstruction would exact a particularly heavy toll if the statute
is structured so that seats become vacant on the first day of each new
Congress. In that case, the opposition would need to block a nominee
for at least two years (and often four) in order to deny the president
a seat. While sitting senators have expressed an openness to blocking
Supreme Court nominees from the opposing party for the duration of a
presidential election year, far fewer have expressed willingness to do
so for an entire congressional or presidential term.footnote19_he6c2rl
[[link removed]]77
[[link removed]] And
in the event that senators did chart a course for four years of
obstruction on a purely partisan basis, voters would have an
opportunity to voice their opposition during the midterms.

Establishing two vacancies per presidential term would also create
greater potential for compromise than is generally available under the
current system, reducing incentives for obstruction. Knowing ahead of
time the number and timing of vacancies that will occur over a
president’s term creates opportunities for bargaining over nominees
or settling on consensus choices during periods of divided government.
For example, should a president’s term begin with divided
government, an impasse over confirmations could be resolved by
appointing one justice supported by the president’s party on the
condition that the president nominate a compromise justice to fill the
next available vacancy.footnote20_gxe0mug
[[link removed]]78
[[link removed]] Unexpected
vacancies late in a president’s term would no longer be
destabilizing because they would not create a new seat to fill.

Finally, to further induce senators to act on a president’s
nomination, Congress could accompany this reform with “fast-track”
statutory mechanisms to help ensure that nominees receive an
up-or-down vote on the Senate floor.footnote21_94r6dxf
[[link removed]]79
[[link removed]] Fast-track
legislation is a common vehicle that Congress uses to prevent certain
measures from being indefinitely obstructed. It does so by requiring
automatic discharge from committee or allowing for a privileged motion
to discharge from committee if a measure is not reported out after a
fixed period, granting the measure privileged access on the floor of
the House or Senate, setting limits on time for debate, and
prohibiting legislators from proposing floor
amendments.footnote22_l6crce9
[[link removed]]80
[[link removed]] Congress
has a long history of passing such procedures to speed up recurring
must-pass legislation, such as trade agreements, budgets, and military
base closures.footnote23_5b497yw
[[link removed]]81
[[link removed]] Supreme
Court confirmations, particularly under a regularized appointment
system, fit this mold.

Such a statute could provide that, upon the nomination of a candidate
by the president to fill a vacancy on the Court, the nomination must
be received by the Senate and referred to the Senate Judiciary
Committee within a stipulated period. The Senate Judiciary Committee
would have a fixed number of days to act on the nomination. Failure to
act would lead to an automatic discharge from the committee, with the
nomination placed on the Senate calendar and a floor vote required
within a set period.footnote24_r751qd3
[[link removed]]82
[[link removed]] These
elements would ensure that every nominee at least receives a full vote
by the Senate — a marked improvement over the status
quo.footnote25_9lazal1
[[link removed]]83
[[link removed]]

To avoid potential constitutional objections, fast-track procedures
typically include a provision that they can be changed “at any time,
in the same manner and to the same extent” as a chamber’s internal
rules.footnote26_2efg54t
[[link removed]]84
[[link removed]] Thus,
the Senate could override this fast-track system by changing its
rules. Nevertheless, fast-track legislation has often established
procedural norms that are hard in practice to override, serving as a
xxxxxx against inaction.footnote27_w95h1c5
[[link removed]]85
[[link removed]]

ADDITIONAL DESIGN FEATURES

Term limits reform also presents an opportunity to improve current
practices on the Court related to recusal and conflicts of interest.
The implementing statute, for example, should provide that in the
event a justice steps aside from hearing a case due to a conflict of
interest, the most recently elevated senior justice would step in.
This would address current disincentives for justices to recuse
themselves from cases because of concerns that their recusal will
leave the Court with fewer than nine members.footnote28_t812n01
[[link removed]]86
[[link removed]] Being
able to tap into a pool of senior justices to hear cases would also
help to ensure that recusals do not cause the Court to drop below
quorum, leaving it unable to hear a case.footnote29_nu2gxp2
[[link removed]]87
[[link removed]]

The implementing statute could also be structured to alleviate
concerns about conflicts of interest stemming from justices’
postretirement activities. Under a term limits system, some justices
may decline senior status and look to pursue activities related to law
or politics after leaving active service.footnote30_4dgwzqp
[[link removed]]88
[[link removed]] The
Constitution grants Congress broad authority to regulate the ethical
conduct of justices in order to mitigate concerns posed by such
activities,footnote31_ux57lxi
[[link removed]]89
[[link removed]] including
by imposing a bar on political fundraising or on pursuing outside
employment during justices’ tenure and for a set period after
leaving public service.footnote32_c4egw8s
[[link removed]]90
[[link removed]]

Congress could set these rules directly by statute or require the
Court to adopt a code of conduct — something the Court has declined
thus far to do voluntarily despite broad support for binding ethics
rules among both the public and other judges.footnote33_byi7ozr
[[link removed]]91
[[link removed]] The
code of conduct that applies to lower court federal judges imposes a
variety of ethical constraints, including limits on judges’
charitable, financial, and fiduciary activities. Most of these
constraints apply explicitly to senior judges.footnote34_org2njm
[[link removed]]92
[[link removed]] Applying
similar rules to the Supreme Court would substantially alleviate the
risks of conflicts of interest.footnote35_ngk77f0
[[link removed]]93
[[link removed]]

Benefits of Reform

On their own, either 18-year term limits or regularized appointments
would help address much of the structural dysfunction that is damaging
the Supreme Court’s public legitimacy — and the implementing
statute should have a strong severability provision so that each
reform can stand on its own.footnote1_xsujgta
[[link removed]]94
[[link removed]] But
the two are mutually reinforcing. Working together, they would be
transformative.

Term limits combined with regularized appointments would enhance the
democratic link between the Court and the public. Under this system,
every presidential term would carry equal opportunity to shape the
Court’s direction. No individual president would have the chance to
install a majority on the Court, nor would a political party be able
to lock in a particular ideology for generations over a short period.
In addition, adopting these reforms would remove current incentives to
appoint increasingly younger justices so as to secure power for a
longer period.footnote2_o9xl1ir
[[link removed]]95
[[link removed]] It
would also eliminate opportunities for justices to strategically
retire, returning power over the trajectory of the Court to the public
via their representatives, as the Constitution envisions.

These reforms would put the United States in the company of every
other major democracy in the world. They would also bring the Court
closer to its historical norms with respect to both the length of
justices’ tenure and the number of appointments per presidential
term: since the founding, the mean, median, and modal number of
Supreme Court vacancies has been approximately two per presidential
term.footnote3_dfgynxs
[[link removed]]96
[[link removed]]

More frequent turnover on the Court would also be likely to improve
judicial decision-making. Social science research shows that
organizations greatly benefit from fresh voices and changes in
interpersonal dynamics and that entrenched leadership in
organizations, especially small ones in which a few individuals wield
great power, often leads to poorer decision-making.footnote4_0u6pasl
[[link removed]]97
[[link removed]] This
concern is especially pronounced for Supreme Court justices, who hold
one of the most elite and powerful positions in the world and whose
decisions regularly affect the daily lives of ordinary Americans,
often in profound ways. While working as a White House attorney, Chief
Justice Roberts expressed similar concerns, writing that “setting a
term of, say, fifteen years would ensure that federal judges would not
lose all touch with reality through decades of ivory tower existence.
It would also provide a more regular and greater degree of turnover
among the judges. Both developments would, in my view, be healthy
ones.”footnote5_jpa27mn
[[link removed]]98
[[link removed]]

Regular turnover would also create more opportunities to bring diverse
life experiences to the Court. By many measures, the Supreme Court is
deeply unrepresentative of both the American public and the legal
profession. For example, there has never been an Asian American or
Native American justice nor an openly LGBTQ+ justice.footnote6_q7loaju
[[link removed]]99
[[link removed]] Among
the sitting justices, all but one attended Harvard or Yale Law School,
and only one is from the western United States. Justice Jackson is the
only justice in history to have worked as a public
defender.footnote7_3g0arna
[[link removed]]100
[[link removed]] With
more frequent appointments, presidents can bring greater diversity to
the Court so that it better embodies the values of the American
public. Courts that reflect the diversity of the communities they
serve inspire public confidence, enhance deliberations among judges,
produce a richer jurisprudence, and create role models for
underrepresented groups.footnote8_fetlqpa
[[link removed]]101
[[link removed]]

One critical question is whether imposing an 18-year term of active
service would undermine the Court’s judicial independence. Alexander
Hamilton famously defended life tenure as necessary to protect the
Court from the political branches of government.footnote9_b511ha7
[[link removed]]102
[[link removed]] But,
as borne out by the experience of every other major democracy in the
world, there is no evidence that long, nonrenewable terms pose a
threat to judicial independence.footnote10_rgxxrzi
[[link removed]]103
[[link removed]]

The power to decide cases until death or retirement is not the only,
or even the primary, basis for the Court’s independence. The
Court’s independence relies on a range of factors, including public
perceptions of its legitimacy, other branches’ respect for its role
and decisions, and its own stewardship of its constitutionally
assigned powers. Inasmuch as the details of a justice’s term of
service impact the Court’s overall independence, what is most
critical is that justices’ tenure on the Court and lifetime of
financial compensation do not depend on winning the ongoing approval
of the political branches of government.footnote11_leniwie
[[link removed]]104
[[link removed]] Under
the active/senior justice model, justices would retain their job
security and salaries regardless of how they might rule in cases.
There would be no greater opportunity for pressure or political
retaliation than under the existing system.footnote12_s2eygoj
[[link removed]]105
[[link removed]]

In fact, there is good reason to believe that the current system
actually threatens judicial independence: strategic retirements and
raw power politics during the confirmation process invite attacks on
the Court’s legitimacy and contribute to public perceptions that the
Court is a partisan institution.footnote13_3mg80i6
[[link removed]]106
[[link removed]] The
judicial branch has neither an army nor the power of the purse; it
relies on public legitimacy to underwrite its power and independence.
Dysfunction in the existing system can therefore threaten the
Court’s functional independence.footnote14_nex4wrc
[[link removed]]107
[[link removed]]

Some critics also contend that regularized appointments would add to
the politicization of the Court by making Supreme Court picks a more
prominent issue on the presidential campaign trail.footnote15_ym55d9y
[[link removed]]108
[[link removed]] Of
course, candidates already do campaign about Supreme Court
nominations. As a candidate, Trump released a list of potential
Supreme Court picks, and both he and Hillary Clinton promised to
appoint justices with specific positions on _Roe v.
Wade_.footnote16_a7k1xll
[[link removed]]109
[[link removed]] Biden
promised to appoint a Black woman to the Court.footnote17_64jfhu8
[[link removed]]110
[[link removed]] Indeed,
regularized appointments are likely to reduce the electoral salience
of potential nominations because such a system ensures that no single
president can lock in power for multiple
generations.footnote18_14b17it
[[link removed]]111
[[link removed]] Even
a two-term president whose party controls the Senate for all eight
years (a situation that is unprecedented in the modern
era)footnote19_xm8z9ul
[[link removed]]112
[[link removed]] could
appoint at most four ideologically aligned justices, which is not
enough on its own to command a majority on the Court.

For similar reasons, the concern that term limits would destabilize
the law due to justices more regularly cycling on and off the Court is
also unpersuasive. Under the current system, there is no limit on the
number of vacancies a president may fill, and there are strong
incentives to use brief periods of unified party control to
reconfigure the Court. By contrast, regularized appointments limit the
imprint that any one president will have on the Court and encourage
compromise during periods of divided government.

The Constitutionality of Implementation by Statute

The reforms described in this paper can be implemented by statute.
Doing so is consistent with the Constitution’s text and structure;
with the ways in which Congress has long regulated the Court,
including the existing system of senior judges; and with the values of
judicial independence that animate Article III and its Good Behavior
Clause.

Article III, which structures the judicial branch, is sparsely
detailed. Section 1 provides that “the judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish”
and that “the Judges, both of the supreme and inferior Courts, shall
hold their Offices during good Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which shall not be
diminished during their Continuance in Office.” Section 2 enumerates
the types of cases and controversies to which “the judicial Power
shall extend,” identifies the types of cases under the Supreme
Court’s original jurisdiction, and establishes that “the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with
such Exceptions, and under such Regulations as the Congress shall
make.” Section 3 discusses punishment for treason.

The value of judicial independence is embedded in this constitutional
design. By providing that judges hold their offices during good
behavior, the Constitution prevents Congress from ousting judges from
office other than through the high bar of impeachment and removal. And
by prohibiting the diminution of judicial salaries, the Constitution
guards against retaliation by the political branches for unpopular
decisions.footnote1_lrzzitp
[[link removed]]113
[[link removed]]

At the same time, while Article III mandates that there be a Supreme
Court vested with “the judicial Power of the United States,” it
says remarkably little about how the Supreme Court should operate.
Rather, it leaves it to Congress to make significant determinations
regarding the Court’s structure and powers pursuant to Article III
and its authority to “make all Laws which shall be necessary and
proper.”footnote2_baxljlj
[[link removed]]114
[[link removed]]

Congress has repeatedly exercised this authority. For example, it has
changed the number of justices on the Court six times, with sizes
ranging from 5 to 10 justices.footnote3_17clw0b
[[link removed]]115
[[link removed]] It
also has substantially changed the Court’s
jurisdiction.footnote4_orr8hk4
[[link removed]]116
[[link removed]] It
was not until 1891, for example, that Congress granted the Court the
power of discretionary appellate review.footnote5_yigsus5
[[link removed]]117
[[link removed]] Congress
has also altered the duties of justices. For instance, when Congress
created circuit courts through the Judiciary Act of 1789, it did not
create corresponding circuit judges. Instead, Congress mandated that
Supreme Court justices sit alongside local district judges to hear
cases in a practice known as circuit riding.footnote6_le5ph4p
[[link removed]]118
[[link removed]] In
1803, in _Stuart v. Laird_, the Supreme Court upheld circuit riding
as constitutional, against an objection that the justices had never
been separately appointed as circuit judges.footnote7_nrarlaq
[[link removed]]119
[[link removed]] Congress
maintained this practice for more than 100 years until it became
untenable for the justices to fulfill their duties on both circuit
courts and the Supreme Court.footnote8_9td3kws
[[link removed]]120
[[link removed]]

With respect to the implementation of regularized appointments,
Congress would be acting well within the bounds of its authority under
Article III and the Necessary and Proper Clause. Regularizing
appointments simply sets a schedule for filling vacancies on the
Supreme Court. It creates new judicial seats in the first and third
years of a president’s term that a president may then fill, with the
advice and consent of the Senate, pursuant to the president’s
ordinary authority under the Constitution’s Appointments Clause. And
when a justice dies or retires from the Court, the seat is eliminated.
Since Congress can create new seats on the Court and eliminate seats
not currently occupied, it can also set a schedule for doing so.

One potential question is whether an early departure from the Court
poses issues with respect to the president’s appointment power,
because under most versions of this proposal the president would not
have an immediate opportunity to appoint a
replacement.footnote9_z9aztgq
[[link removed]]121
[[link removed]] Critically,
however, under this circumstance no vacancy would exist for the
president to fill: the existing seat would be eliminated upon the
justice’s departure and a new seat would be created only according
to the schedule set by Congress.

Likewise, Congress has the power to establish 18-year terms for
justices so long as the justices continue to “hold their Offices
during good Behaviour” after leaving active service, as required by
Article III. The active/senior justice model comports with the Good
Behavior Clause by providing that after 18 years, justices retain
their judicial offices as senior justices with modified
responsibilities.

The active/senior justice model is similar to a long-standing system
of senior judges that is more than a century old and that has applied
to Supreme Court justices since 1937. The main difference is that
under the reform, justices take senior status pursuant to a fixed
schedule rather than at a time of their choosing. This distinction has
constitutional relevance, however, only if being required to take
senior status is akin to being forced from office, such that the
justices would no longer “hold their Offices during good
Behaviour.”footnote10_z8dugfy
[[link removed]]122
[[link removed]]

But the Supreme Court ruled nearly 90 years ago that senior judges
continue to hold their judicial offices. In 1934, in _Booth v. United
States_, the Court considered a predecessor of the senior judge
statute that applied to lower court judges. The Court held that
assuming senior status does not constitute a removal from office.
Considering a challenge by a senior judge to a reduction in salary,
the Court concluded that senior judges could not have their salaries
reduced because a senior judge “does not surrender his commission,
but continues to act under it.”footnote11_k5dhbn0
[[link removed]]123
[[link removed]] In
other words, senior judges remain judges within the meaning of Article
III. The Court explained that “Congress may lighten judicial duties,
though it is without power to abolish the office or to diminish the
compensation appertaining to it.”footnote12_m60h35k
[[link removed]]124
[[link removed]]

Although _Booth _concerned lower court judges, its reasoning applies
with equal force to Supreme Court justices because Article III’s
Good Behavior Clause applies to “Judges, both of the supreme and
inferior Courts.”footnote13_fgmsl7a
[[link removed]]125
[[link removed]] While
imposing a schedule for when justices take senior status leaves them
with less discretion over the content of their dockets, it is
Congress, not the justices themselves, that holds the power to define
the contours of justices’ dockets and duties.

While the Supreme Court has not squarely addressed the
constitutionality of senior judges since _Booth_, it has affirmed its
underlying rationale. In _Nguyen v. United States_, a 2003 case
challenging the constitutionality of an appellate panel consisting of
an active circuit judge, a senior circuit judge, and an Article IV
territorial judge from the Mariana Islands, the Supreme Court held
that the panel lacked the authority to hear the appeal due to the
presence of the Article IV judge. But in doing so, the Court confirmed
that both the active and senior judge were, “of course, life-tenured
Article III judges who serve during ‘good behavior’ for
compensation that may not be diminished while in
office.”footnote14_wqz74fe
[[link removed]]126
[[link removed]] Lower
courts have also entertained challenges to the constitutionality of
the senior judge system since _Booth_, including several in recent
years. They have consistently held that the senior judge system is
constitutional and that arguments to the contrary are without
merit.footnote15_ryrpcxg
[[link removed]]127
[[link removed]]

Moreover, there is a long-standing tradition of justices who have
retired from active service sitting by designation on lower federal
courts, including Justices Potter Stewart, Lewis F. Powell Jr., and
Byron White and, in recent years, Justices O’Connor and
Souter.footnote16_9tzeh9t
[[link removed]]128
[[link removed]] Since
1937, retired justices have heard more than 1,300 cases while sitting
as judges on the courts of appeal and district
courts.footnote17_3pc37w6
[[link removed]]129
[[link removed]] If
it were the case that justices surrender their judicial office when
they retire from active service on the Court, then the practice of
justices sitting by designation would itself be unconstitutional. As
the Court noted in _Booth_, “It is scarcely necessary to say that a
retired judge’s judicial acts would be illegal unless he who
performed them held the office of judge.”footnote18_ln0845k
[[link removed]]130
[[link removed]]

Some critics have objected to senior justices by suggesting that the
Constitution creates a separate “office” of Supreme Court justice
that is distinct from the office of lower court
judge.footnote19_4bycr82
[[link removed]]131
[[link removed]] According
to this argument, in order to retain their office within the meaning
of the Good Behavior Clause, justices must perform duties related to
their Supreme Court office. But Congress has broad power to define the
content of the office of a justice, including,
as _Booth _recognized, to “lighten judicial duties” over the
course of a judge’s tenure and, as _Stuart _recognized, to require
justices to serve on lower courts. Indeed, under the current system,
justices who have retired from active service can sit by designation
on lower courts but are barred from sitting on the Supreme
Court.footnote20_f9i7odd
[[link removed]]132
[[link removed]] Notably,
the active/senior justice model contemplates a much more significant
role for senior justices: They would continue to hear Supreme Court
cases when the Court is shorthanded due to a justice’s recusal or in
the event of a premature departure from the bench. They would
potentially also hear cases falling under the Court’s original
jurisdiction.

To be sure, Congress could not “lighten” justices’ duties out of
existence altogether such that they held office in name only. Nor
could Congress single out an individual justice for lightened duties
or target justices appointed by a president of a particular political
party. But these actions are forbidden because they are assaults on
the values of judicial independence enshrined in the Constitution’s
structure. By contrast, the active/senior justice model targets no
justice individually and does not impinge on the justices’
decisional independence.

Separately, some critics have objected to senior justice models on the
theory that elevating an active justice to senior justice without a
separate appointment violates the Constitution’s Appointments
Clause.footnote21_il2zlhe
[[link removed]]133
[[link removed]] However,
under Supreme Court precedent, a change in duties does not require a
new appointment so long as the new duties are sufficiently germane to
those of the original position. This “germaneness” requirement
under the Appointments Clause is quite broad. For example, in _Weiss
v. United States_, the Court held that a commissioned military officer
could be designated as a military judge without a separate
appointment.footnote22_5fjzal2
[[link removed]]134
[[link removed]] It
is far from clear that prospectively changing justices’ duties
implicates the Appointments Clause. Regardless, because federal law
already authorizes retired justices to engage in the duties with which
senior justices would be tasked under the active/senior justice model,
it appears clear that a separate appointment is not
required.footnote23_udfyi7b
[[link removed]]135
[[link removed]]

Finally, some critics point to historical practice in objecting to the
active/senior justice model. But while it is true that justices have
been able to sit in active service until they choose to step down, the
fact that earlier generations did not see a need to restructure
“good behavior” tenure into active service and senior service does
not mean that Congress lacks the authority to do so today. The
Constitution leaves Congress with wide latitude to define the
Court’s structure and the justices’ duties as required by the
needs of the day, constrained by structural protections that preserve
judicial independence. As recognized by dozens of prominent
constitutional scholars, the active/senior justice model is fully
consistent with the Constitution’s text and structure, as well as
with longstanding precedent about the operation of senior
judges.footnote24_7m221af
[[link removed]]136
[[link removed]]

Transitioning from the Existing System

There are various ways that Congress could implement the transition
from the current system to an active/senior justice model with
regularized appointments.footnote1_oojbugg
[[link removed]]137
[[link removed]]

One option would be to implement the reforms prospectively, applying
the active/senior justice model only to justices appointed after the
reform takes effect.footnote2_i6k2ern
[[link removed]]138
[[link removed]] To
set the transition in motion, Congress would impose 18-year active
terms for all new justices and establish a system of regularized
vacancies, creating openings in the first and third years of each
president’s term going forward, regardless of when any of the
current justices retire. This would effectively decouple vacancies
from appointments until all of the current justices have retired from
office or taken senior status, at which point a full transition would
have taken place.footnote3_wtjpj7d
[[link removed]]139
[[link removed]]

There are strong arguments for this prospective approach. Applying
term limits to current justices risks weakening broad public support
for the reform. A prospective approach also avoids any potential
objections to changing sitting justices’ duties after their
appointment.

One significant impact of this transition option would be on the
Court’s size. It is hard to predict whether and how the adoption of
a regularized cycle of new appointments would influence the justices
who took office prior to the reform. It could motivate some justices
to retire earlier than they might otherwise to maintain the Court’s
size at nine members. However, it is likely that during the transition
the Court would exceed nine members, and there could be times when
there is an even number of justices. Assuming that the reform took
effect with the next presidential term, in 2025, and assuming that the
current justices stayed on the Court until they turned 85 — the
outer bounds of what is likely — the Court would reach 14 active
justices for brief periods and have a long interval in which the
number of active justices ranged from 10 to 13. Under these
assumptions, a full transition would take up to 35 years, at which
point the Court would return to nine seats.footnote4_x3ee9yd
[[link removed]]140
[[link removed]]

Importantly, this increase in size would not offer a windfall to
either political party: going forward, every president would have two,
and only two, Supreme Court seats to fill in a four-year term.
Moreover, the experiences of the 13 U.S. federal circuit courts as
well as high courts in other democracies suggest that the Supreme
Court would function effectively throughout the transition
period.footnote5_t3os4xr
[[link removed]]141
[[link removed]] All
but one of the circuit courts have at least 11 active
judges.footnote6_jl92hb7
[[link removed]]142
[[link removed]] Although
circuit courts decide most cases in panels, they also meet on occasion
as a full court (“en banc”).footnote7_sasqpmp
[[link removed]]143
[[link removed]] Among
the world’s most populous democracies, the United States is one of
only a few countries with a high court of general jurisdiction
composed of fewer than 11 justices.footnote8_l9i3gw7
[[link removed]]144
[[link removed]] The
high court in France has 11 members, South Africa has 11, Belgium 12,
Ireland 12, Spain 12, the United Kingdom 12, Austria 14, South Korea
14, Italy 15, Japan 15, Germany 16, Sweden 16, and Denmark
18.footnote9_i0f1gei
[[link removed]]145
[[link removed]] Some
of these courts use a panel system, which the U.S. Supreme Court could
adopt to accommodate a temporary expansion and potentially as a
permanent reform.footnote10_999gstd
[[link removed]]146
[[link removed]]

Likewise, courts with an even number of judges are common in other
countries, and the U.S. Supreme Court itself has functioned with an
even number of justices in the past, including for 14 months after
Justice Scalia’s death.footnote11_ja2qip2
[[link removed]]147
[[link removed]] During
this period, the justices publicly acknowledged that having an even
number of justices forced them to work harder to find common ground in
order to avoid leaving an issue or case undecided.footnote12_j3hje9c
[[link removed]]148
[[link removed]] Greater
incentives to moderate would be a positive development during a moment
of institutional change.

Alternatively, Congress could consider other transition options that
prioritize different values. For example, Congress could choose to
implement 18-year terms retroactively. Under this proposal, Congress
would establish a schedule for future appointments to the Court. But
rather than allowing the current justices to retire or take senior
status when they choose, the statute would provide that the
longest-serving current justice must either retire or take senior
status at the time of the next scheduled
appointment.footnote13_8tpun0j
[[link removed]]149
[[link removed]] The
process would repeat until all current justices had cycled off active
service.footnote14_0lzr5p9
[[link removed]]150
[[link removed]] This
approach offers the shortest path to a full
transition.footnote15_ow84eel
[[link removed]]151
[[link removed]]

Another option, a phase-in proposal, is prospective but would have the
president appoint new justices only when current ones retire or take
senior status. This would maintain the Court’s size at nine seats by
delaying the introduction of regularized
appointments.footnote16_8907wr8
[[link removed]]152
[[link removed]] As
a result, during the transition period, the number of appointments per
presidential term would vary. Current justices would continue to have
an incentive to engage in strategic retirements, and presidents would
continue to have differing imprints on the Court until the transition
is complete. A similar option would implement regularized appointments
during the transition period but deem only the nine longest-serving
justices on the Court as active justices in order to maintain the
Court’s size at nine seats.footnote17_r1y06oh
[[link removed]]153
[[link removed]]

A Long-Term Campaign for a Constitutional Amendment

A question frequently raised about term limits and regularized
appointments is whether it would be preferable to adopt such a reform
by constitutional amendment. This presents a false choice. The best
course of action is to pursue both an immediate statutory fix and a
long-term campaign for a constitutional amendment.

A constitutional amendment has several advantages. Most significantly,
it would ensure the long-term stability of reform. Statutes can be
undone by future congresses, creating opportunities for partisan
gamesmanship. The Supreme Court, either now or in a future form, could
buck precedent and undo all or part of the reform. By contrast, an
amendment would institutionalize Supreme Court reform so that it would
not be subject to congressional or judicial whim.

An amendment would also present opportunities to implement a broader
range of reforms to the confirmation process. There is a wide set of
options worthy of consideration. For example, to address the risk of
obstruction in the advice-and-consent process, an amendment could
provide that a nominee is deemed confirmed if the Senate does not vote
within a specified period. It could also change the number of Senate
votes required for confirmation, or specify that if one nominee is
rejected, the number of Senate votes required to confirm a subsequent
nominee is reduced, or it could create a backup institution to
consider nominees in the event of an impasse.footnote1_o2gflo4
[[link removed]]154
[[link removed]] An
amendment could also address the nomination process — for example,
establishing a commission to vet potential candidates and generate a
short list for the president, similar to systems that have worked well
in several states and other countries.footnote2_lwr6m1p
[[link removed]]155
[[link removed]]

A statutory solution, however, is not only consistent with a
constitutional amendment campaign but complementary to it. Passing
reform by statute presents an opportunity to build public support for
a substantial institutional redesign that could later be codified in
the Constitution.

Equally important is the urgency of the current moment. The Court is
facing a crisis of public confidence — and of democratic legitimacy.
It would be a mistake to delay an opportunity to reset and rebuild the
Supreme Court.

Conclusion

Unbounded Supreme Court tenure is an outdated relic. It gives
individual justices the power to shape the direction of the law for
generations and has warped the incentives of political actors and
justices alike. The result is a Court with an increasingly tenuous
link to the American public.

Implementing 18-year active terms and regularized appointments offers
a path forward. Every president would have the same opportunity to
shape the trajectory of the Court during a four-year term in office.
Justices would no longer be able to tap their own successors through
strategic retirements. The constitutional crises that are generated by
unexpected vacancies late in a president’s term would be a thing of
the past. A predictable appointment schedule would lower the
temperature on judicial confirmation battles.

To be clear, there are a number of important areas warranting Supreme
Court reform. Congress should, for example, directly address the
justices’ recent ethical lapses.footnote1_sktjko7
[[link removed]]156
[[link removed]] But
term limits reform addresses long-standing dysfunctions on the Court
while squarely responding to its current deficit in democratic
legitimacy. And it is one of the rare policies that consistently
garner broad bipartisan support.

A majority of Americans believe that U.S. democracy is “in crisis
and at risk of failing.”footnote2_i87ar96
[[link removed]]157
[[link removed]] The
Supreme Court should be a stabilizing force and a democratic xxxxxx.
Instead, it is facing its own crisis of public trust.footnote3_re9cpkw
[[link removed]]158
[[link removed]]

It is time to reform the Supreme Court.

Appendix

Endnotes

* footnote1_n4tdqay
[[link removed]]
1
[[link removed]] Professor
Jamal Greene captured this development succinctly in testimony to the
Presidential Commission on the Supreme Court: “A starkly different
political and legal landscape in a nation of 330 million has the
potential to turn on the views of a single person. That single person
is unelected, is one of only nine, can be confirmed by a bare and
strictly partisan majority of the U.S. Senate, plays a major role in
deciding what cases they hear, can potentially remain in office for 40
or 50 years, and can, in effect, choose the ideology of their
replacement, who may in turn hold office for another 40 or 50 years
under like conditions. In constitutional cases, the decisions the
Court reaches are effectively unreviewable except by the Court itself,
amendment of the federal Constitution having become effectively
defunct. . . . The Founders did not gift us this constellation of
features.” Presidential Commission on the Supreme Court of the
United States, _Closing Reflections on the Supreme Court and
Constitutional Governance_, July 20, 2021 (statement of Jamal Greene,
Dwight Professor of Law, Columbia Law School),
6, [link removed].

* footnote2_kmjz7zx
[[link removed]]
2
[[link removed]] Joshua
Kaplan, Justin Elliott, and Alex Mierjeski, “Clarence Thomas Had a
Child in Private School. Harlan Crow Paid the Tuition,” ProPublica,
May 4,
2023, [link removed];
Emma Brown, Shawn Boburg, and Jonathan O’Connell, “Judicial
Activist Directed Fees to Clarence Thomas’s Wife, Urged ‘No
Mention of Ginni,’” _Washington Post_, May 4,
2023, [link removed];
Mattathias Schwartz, “Jane Roberts, Who Is Married to Chief Justice
John Roberts, Made $10.3 Million in Commissions from Elite Law Firms,
Whistleblower Documents Show,” _Forbes_, April 28,
2023, [link removed]–4
[[link removed]];
Charlie Savage, “Head of a Major Law Firm Bought Real Estate From
Gorsuch,” _New York Times_, April 25,
2023, [link removed];
Joshua Kaplan, Justin Elliott, and Alex Mierjeski, “Clarence Thomas
and the Billionaire,” ProPublica, April 6,
2023, [link removed];
Jodi Kantor and Jo Becker, “Former Anti-Abortion Leader Alleges
Another Supreme Court Breach,” _New York Times_, November 19,
2022, [link removed];
and Adam Liptak, “Justice Thomas Ruled on Election Cases. Should His
Wife’s Texts Have Stopped Him?,” _New York Times_, March 25,
2022, [link removed].

* footnote3_9fx2mfp
[[link removed]]
3
[[link removed]] Stephen
Jessee, Neil Malhotra, and Maya Sen, “A Decade-Long Longitudinal
Survey Shows That the Supreme Court Is Now Much More Conservative Than
the Public,” _Proceedings of the National Academy of
Sciences_ 119, no. 24 (June 6,
2022), [link removed]; and Mark A.
Lemley, “The Imperial Supreme Court,” _Harvard Law Review _136,
no. 1 (November 2022):
97–118, [link removed].

* footnote4_rnxtcu9
[[link removed]]
4
[[link removed]] Alan
I. Abramowitz and Steven Webster, “The Rise of Negative Partisanship
and the Nationalization of U.S. Elections in the 21st
Century,” _Electoral Studies _41 (2016):
12, [link removed];
Neal Devins and Lawrence Baum, “Split Definitive: How Party
Polarization Turned the Supreme Court into a Partisan
Court,” _Supreme Court Review_ 2016 (January 30, 2017):
301–65, [link removed]; and Amelia Thomson-DeVeaux
and Laura Bronner, “The Supreme Court Divide Hasn’t Been This
Sharp in Generations,” _FiveThirtyEight_, July 5,
2022, [link removed].

* footnote5_dpe8dhg
[[link removed]]
5
[[link removed]] Jeffrey
M. Jones, “Supreme Court Trust, Job Approval at Historical Lows,”
Gallup, October 6,
2022, [link removed].

* footnote6_wsk5z0z
[[link removed]]
6
[[link removed]] Marin
K. Levy, “The Promise of Senior Judges,” _Northwestern University
Law Review_ 115, no. 4 (January 17, 2021):
1240–42, [link removed].

* footnote7_r09tt7o
[[link removed]]
7
[[link removed]] Steven
G. Calabresi and James Lindgren, “Term Limits for the Supreme Court:
Life Tenure Reconsidered,” _Harvard Journal of Law and Public
Policy_ 29, no. 3 (May 2006): 771,
[link removed]. Post-2006
calculations on file with the Brennan Center.
* footnote8_i7k0meb
[[link removed]]
8
[[link removed]] Calabresi
and Lindgren, “Term Limits,” 819; Presidential
Commission, _Closing Reflections _(statement, Greene), 23; and
Presidential Commission on the Supreme Court of the United
States, _Term Limits and Turnover on the U.S. Supreme Court: A
Comparative View_, July 20, 2021 (written testimony of Tom Ginsburg,
Leo Spitz Professor of Law, University of Chicago Law School, and
research fellow, American Bar Foundation),
3, [link removed].

* footnote9_yz0rwp0
[[link removed]]
9
[[link removed]] Michael
J. Gerhardt and Richard W. Painter, “Majority Rule and the Future of
Judicial Selection,” _Wisconsin Law Review_ 2017, no. 2 (May
2017):
270–75, [link removed].

* footnote10_u3j35qy
[[link removed]]
10
[[link removed]] Joseph
Fishkin and David E. Pozen, “Asymmetric Constitutional
Hardball,” _Columbia Law Review _118 (2018):
921, [link removed].
* footnote11_970dnke
[[link removed]]
11
[[link removed]] Caroline
Fredrickson, Jamal Greene, and Melissa Murray, _The Progressive
Constitution_, National Constitution Center, accessed March 7,
2023, [link removed];
and Robert P. George et al., _The Conservative Constitution_,
National Constitution Center, accessed March 7,
2023, [link removed].
Comparative constitutional law scholars have reached the same
conclusion, acknowledging that “were we writing the United States
Constitution anew, there is no way we would adopt the particular
institutional structure that we have for judicial tenure. No other
country has true lifetime tenure for its justices, and for good
reason.” Presidential Commission, _Term Limits and
Turnover _(written testimony, Ginsburg), 2.
* footnote12_i7hgym7
[[link removed]]
12
[[link removed]] Presidential
Commission on the Supreme Court of the United States, _Final Report_,
December 2021,
111, [link removed]–1.pdf
[[link removed]].

* footnote1_tidldre
[[link removed]]
13
[[link removed]] Alexander
Hamilton, _Federalist_ No. 78, National Archives: Founders Online,
May 28, 1788,
[link removed]–04–02–0241#ARHN-01–04–02–0241-fn-0001.

* footnote2_nij05hk
[[link removed]]
14
[[link removed]] William
Rehnquist, “Remarks of the Chief Justice,” lecture, My Life in the
Law series, Duke University School of Law, April 13,
2002, [link removed]–13–02
[[link removed]].

* footnote3_k9u00n1
[[link removed]]
15
[[link removed]] Gregory
S. Fisher, “Reining In Those Pesky Federal Judges: Re-examining the
Purpose and Premise of Life Tenure — A Perspective,” _Federal
Lawyer _53, no. 1 (January 2006): 31.
* footnote4_p25wsr4
[[link removed]]
16
[[link removed]] Frederick
A. O. Schwarz Jr., “Saving the Supreme Court,” _Democracy_, no.
54 (Fall
2019), [link removed].

* footnote5_ndadep0
[[link removed]]
17
[[link removed]] Presidential
Commission_, Closing Reflections_ (statement, Greene), 3–4; and
Schwarz, “Saving the Supreme Court.”
* footnote6_gm7i6x5
[[link removed]]
18
[[link removed]] Lee
Epstein and Eric Posner, “If the Supreme Court Is Nakedly Political,
Can It Be Just?,” _New York Times_, July 9,
2018, [link removed].

* footnote7_pzomw1r
[[link removed]]
19
[[link removed]] See
Tyler Cooper et al., “Retiring Life Tenure: On Term Limits and
Regular Appointments at the Supreme Court,” _Cardozo Law
Review _42 (2021):
2766, [link removed].

* footnote8_cu3dcrw
[[link removed]]
20
[[link removed]] Calabresi
and Lindgren, “Term Limits,” 771; and David Ingold, Cedric Sam,
and Mira Rojanasakul, “Biden Nominee Jackson Could Serve for Decades
with a Conservative Supreme Court Majority,” _Bloomberg_, January
28,
2022, [link removed].

* footnote9_x3bp3hq
[[link removed]]
21
[[link removed]] These
justices include Barrett, Gorsuch, Kagan, Jackson, Roberts, and
Thomas. Since 1972 there has been only one justice who was older than
55 when appointed to the Court. Presidential Commission on the Supreme
Court, _Perspectives from Supreme Court Practitioners and Views on
the Confirmation Process_, July 20, 2021 (written testimony of Ilya
Shapiro, vice president, Cato Institute),
7, [link removed].

* footnote10_el275lq
[[link removed]]
22
[[link removed]] See
Ingold, Sam, and Rojanasakul, “Biden Nominee Jackson”; Calabresi
and Lindgren, “Term Limits,” 800–801; and Kristin Bialik and
John Gramlich, “Younger Supreme Court Appointees Stay on the Bench
Longer, but There Are Plenty of Exceptions,” Pew Research Center,
February 8,
2017, [link removed].

* footnote11_7jgk8oo
[[link removed]]
23
[[link removed]] Adam
Chilton et al., “Designing Supreme Court Term Limits,” _Southern
California Law Review_ 95, no. 1 (May 2022):
10–11, [link removed].

* footnote12_nc6kxz8
[[link removed]]
24
[[link removed]] Supreme
Court of the United States, “Justices 1798 to Present,” accessed
March 7, 2023, [link removed].
* footnote13_gf345x6
[[link removed]]
25
[[link removed]] John
G. Roberts (associate counsel to President Reagan) to Fred F. Fielding
(White House counsel), Re: DOJ Proposed Report on S.J. 93, October 3,
1983, [link removed].

* footnote14_5h2ed09
[[link removed]]
26
[[link removed]] As
former circuit court judge Michael McConnell stated in testimony to
the Presidential Commission on the Supreme Court, “Eighteen years of
service on the highest court in the land is enough for any human
being. Age, infirmity, and close-mindedness tend to take their
toll.” Presidential Commission on the Supreme Court of the United
States, _The Contemporary Debate over Supreme Court Reform: Origins
and Perspectives, _June 30, 2021 (written testimony of Michael
McConnell), [link removed].
Numerous studies have shown the effects of normal aging on cognition
and reasoning, and “even the maintained ability of crystallized
knowledge has been shown to decline steadily after about age 70 or
75.” Alan S. Kaufman, “The Precipitous Decline in Reasoning and
Other Key Abilities with Age and Its Implications for Federal
Judges,” _Journal of Intelligence _9, no. 4 (October 25,
2021), [link removed]. According to one
study, since the 20th century at least 11 justices on the Court
suffered “a serious mental decline” during their final years of
service. David R. Stras and Ryan W. Scott, “Retaining Life Tenure:
The Case for a ‘Golden Parachute,’ ” _Washington University
Law Quarterly_ 83, no. 5 (2005):
1437, [link removed]. See also
David J. Garrow, “Mental Decrepitude on the U.S. Supreme Court: The
Historical Case for a 28th Amendment,” _Chicago Law Review _67,
no. 4 (2000):
995–1086, [link removed];
and Joseph Goldstein, “Life Tenure for Federal Judges Raises Issues
of Senility, Dementia,” ProPublica, January 18,
2011, [link removed].

* footnote15_h1rywe8
[[link removed]]
27
[[link removed]] Schwarz,
“Saving the Supreme Court.”
* footnote16_5i57tlr
[[link removed]]
28
[[link removed]] Presidential
Commission, _Contemporary Debate _(written testimony, McConnell), 3.

* footnote17_bhyi007
[[link removed]]
29
[[link removed]] “The
reason we do not allow the Justices to pick their own successors is
precisely because we believe that the judiciary, just like the
legislature and the executive, needs to be subject to popular control
and to the system of checks and balances.” Calabresi and Lindgren,
“Term Limits,” 812.
* footnote18_fs63rco
[[link removed]]
30
[[link removed]] Ruth
Marcus, _Supreme Ambition: Brett Kavanaugh and the Conservative
Takeover of the Supreme Court_ (New York: Simon & Schuster, 2019),
2–3, 50–51; and Christopher Cadelago, Nancy Cook, and Andrew
Restuccia, “How a Private Meeting with Kennedy Helped Trump Get to
‘Yes’ on Kavanaugh,” _Politico_, July 9,
2018, [link removed].

* footnote19_ksd7rq9
[[link removed]]
31
[[link removed]] Scott
Lemieux, “When Do Supreme Court Justices Retire? When the Politics
Are Right,” _Washington Post_, August 28,
2019, [link removed].
* footnote20_dwgfpfc
[[link removed]]
32
[[link removed]] C-SPAN,
“Retirement of Justice Marshall,” June 28,
1991, [link removed]–1/retirement-justice-marshall
[[link removed]].
* footnote21_pjmf14x
[[link removed]]
33
[[link removed]] David
Lauter, “Essential Politics: Supreme Court Nomination Hearings —
Long Awful — Have Gotten Worse. Here’s Why,” _Los Angeles
Times_, March 25,
2022, [link removed]–03–25/ketanji-brown-jackson-hearings-essential-politics
[[link removed]].
In 1994 Justice Stephen Breyer received 87 votes during his
confirmation, including 79 percent of those cast by Republicans. This
was consistent with the experience of approximately three-quarters of
all Supreme Court nominees up to that point (including those confirmed
by voice vote). Since then, no nominee has had this level of support.
Geoffrey Skelley, “It’s Harder Than Ever to Confirm a Supreme
Court Justice,” _FiveThirtyEight_, February 2,
2022, [link removed].

* footnote22_671cg8a
[[link removed]]
34
[[link removed]] The
four justices most recently appointed to the Court were confirmed with
bare majorities of no more than 54 votes: Justice Gorsuch received 54
votes, Justice Kavanaugh 50 votes, Justice Barrett 52, and Justice
Jackson 53. United States Senate, “Supreme Court Nominations
(1789–Present),” accessed March 23,
2023, [link removed].

* footnote23_y52w57y
[[link removed]]
35
[[link removed]] Sen.
Sheldon D. Whitehouse with Jennifer Mueller, _The Scheme: How the
Right Wing Used Dark Money to Capture the Supreme Court_ (New York:
The New Press, 2023); Brennan Center for Justice, “Follow the Money:
Tracking TV Spending on the Kavanaugh Nomination,” July 26,
2018, [link removed];
Douglas Keith, “What We Know About the Money Behind Brett
Kavanaugh’s Confirmation Fight,” _HuffPost_, September 3,
2018, [link removed];
Anna Massoglia, “Trump Judicial Adviser’s ‘Dark Money’ Network
Hides Supreme Court Spending,” Open Secrets, January 2,
2020, [link removed];
Madison Alder, “GOP Dark Money Criticisms in Supreme Court Fight
Mirror Democrats,” _Bloomberg Law_, March 18,
2022, [link removed];
and Lachlan Markay, “Progressives Prep Big Spending for SCOTUS
Confirmation,” _Axios_, March 6,
2022, [link removed].

* footnote24_8t6r2cy
[[link removed]]
36
[[link removed]] Alicia
Bannon, “The Rise of Dark Money Is a Threat to Judicial
Independence,” Brennan Center for Justice, July 6,
2018, [link removed].

* footnote25_oxgrz3q
[[link removed]]
37
[[link removed]] Gerhardt
and Painter, “Majority Rule and the Future of Judicial Selection,”
270–75; Daniel Epps and Ganesh Sitaraman, “How to Save the Supreme
Court_,_”_ Yale Law Journal _129, no. 1 (October 2019):
169, [link removed];
Steven Calabresi, “End the Poisonous Process of Picking Supreme
Court Justices,” _New York Times_, September 22,
2020, [link removed];
and Bob Bauer, “Six Ways to Fix the Supreme Court Confirmation
Process,” _Atlantic_, October 16,
2018, [link removed].

* footnote26_8lg3t5r
[[link removed]]
38
[[link removed]] Gerhardt
and Painter, “Majority Rule and the Future of Judicial Selection,”
271.
* footnote27_z90nnyp
[[link removed]]
39
[[link removed]] Eric
T. Kasper, “Theory and Practice: James Madison and the
Constitutional Power to Appoint Supreme Court
Justices,” _Quinnipiac Law Review_ 38, no. 4 (2020):
654–55, [link removed].

* footnote28_eb59s2r
[[link removed]]
40
[[link removed]] Several
prominent Republicans went so far as to publicly commit to holding
open the seat indefinitely in the event that a Democrat won the 2016
presidential election. See Sabrina Siddiqui, “Republican Senators
Vow to Block Any Clinton Supreme Court Nominee
Forever,” _Guardian_, November 2,
2016, [link removed].

* footnote29_0a1qn8j
[[link removed]]
41
[[link removed]] Alicia
Bannon, “Justice Ginsburg Should Not Be Replaced Until After the
Election,” Brennan Center for Justice, September 19,
2020, [link removed].

* footnote30_t6wwjig
[[link removed]]
42
[[link removed]] Nina
Totenberg, “Many Firsts at Confirmation Hearings for Judge Amy Coney
Barrett,” NPR, October 12,
2020, [link removed].

* footnote31_xx95sau
[[link removed]]
43
[[link removed]] Peniel
E. Joseph, “The Racist, Sexist Mudslinging at Ketanji Brown Jackson
Is Disgraceful,” CNN, March 23,
2022, [link removed];
Carl Hulse, “McConnell Suggests He Would Block a Biden Nominee for
the Supreme Court in 2024,” _New York Times_, June 14,
2021, [link removed].

* footnote32_7fl9byz
[[link removed]]
44
[[link removed]] “A
foundational norm, which may come clearly into view only when it is
violated, may thus underlie the legitimacy of the judiciary: an
approximate proportionality principle, according to which the
long-term ideological balance of the Court should roughly reflect the
long-term ideological preferences of the people. The Constitution
provides a partial assurance of that proportionality by vesting the
authority to appoint Supreme Court Justices in the President with the
advice and consent of the Senate.” Matthew A. Seligman, “Court
Packing, Senate Stonewalling, and the Constitutional Politics of
Judicial Appointments Reform,” _Arizona State Law Journal_ 54, no.
2 (December 2022):
593, [link removed].

* footnote33_5cp0qdu
[[link removed]]
45
[[link removed]] Kansas
Sen. Joseph Bristow, for instance, specifically attributed “the
rapid growth of the sentiment for a change in the method of electing
Senators” to concerns about the corporate capture of the federal
courts. Joshua P. Zoffer and David Singh Grewal, “The
Counter-Majoritarian Difficulty of a Minoritarian
Judiciary,” _California Law Review Online _11 (October 2020):
446, [link removed].
* footnote34_fsug732
[[link removed]]
46
[[link removed]] Schwarz,
“Saving the Supreme Court.”
* footnote35_n2yr65q
[[link removed]]
47
[[link removed]] U.S.
Supreme Court, “Justices 1789 to Present,” accessed March 27,
2023, [link removed]; and
Presidential Commission, _Final Report_, 115.
* footnote36_x3gonfn
[[link removed]]
48
[[link removed]] “The
lack of proportionality between the public’s political preferences
and appointments to the Court is compounded by perceived procedural
irregularities in the appointment of Justices over the last five
years.” Seligman, “Court Packing,” 594.
* footnote37_t8zz4br
[[link removed]]
49
[[link removed]] Jessee,
Malhotra, and Sen, “A Decade-Long Longitudinal Survey,” 119.
* footnote38_4rc2l4b
[[link removed]]
50
[[link removed]] Jones,
“Supreme Court Trust.”
* footnote1_io423ag
[[link removed]]
51
[[link removed]] Calabresi
and Lindgren, “Term Limits,” 819–22; and Presidential
Commission, _Closing Reflections _(statement, Greene), 5. The only
other countries that grant high constitutional court judges life
tenure without limitation are Estonia, Luxembourg, Oman, and,
arguably, Haiti. Kevin Costello, “Supreme Court Politics and Life
Tenure: A Comparative Inquiry,” _Hastings Law Journal_ 71, no. 4
(2020):
1153–54, [link removed].

* footnote2_j090ru5
[[link removed]]
52
[[link removed]] Presidential
Commission, _Term Limits and Turnover _(written testimony,
Ginsburg), 3.
* footnote3_gb30637
[[link removed]]
53
[[link removed]] Presidential
Commission on the Supreme Court of the United States, Panel 2 hearing,
July 20, 2021 (written testimony of Vicki C. Jackson, Laurence H.
Tribe Professor of Constitutional Law, Harvard Law
School), [link removed].
Since 1787 the global trend has been decidedly against unbounded life
tenure. Among the 800-plus constitutions adopted since 1787, fewer
than 20 percent have granted high court judges life tenure. In those
cases, there is virtually always a limitation on tenure, such as an
age limit. Presidential Commission, _Term Limits and
Turnover_ (written testimony, Ginsburg), 3.
* footnote4_gu3ixpt
[[link removed]]
54
[[link removed]] Presidential
Commission, _Term Limits and Turnover _(written testimony,
Ginsburg), 3–4.
* footnote5_c5ap3ge
[[link removed]]
55
[[link removed]] Brennan
Center for Justice, “Judicial Selection: Significant Figures,”
October 11,
2022, [link removed].

* footnote6_wotbeh9
[[link removed]]
56
[[link removed]] 28
U.S.C. § 152; and 28 U.S.C. § 631.
* footnote7_r784hq4
[[link removed]]
57
[[link removed]] “States
with Gubernatorial Term Limits,” _Ballotpedia_, accessed March 26,
2023, [link removed];
National Conference of State Legislatures, “The Term Limited
States,” accessed March 26,
2023, [link removed];
and Richard G. Niemi and Kristin K. Rulison, “The Effects of Term
Limits on State Legislatures and Their Applicability to the Executive
Branch,” _Albany Government Law Review_ 4, no. 3 (August 2011):
661, [link removed].

* footnote8_h734yrc
[[link removed]]
58
[[link removed]] “Medication
Abortions and the U.S. Supreme Court,” NPR/PBS NewsHour/Marist
National Poll, April 24,
2023, [link removed].
See also appendix.
* footnote1_ysf2nfb
[[link removed]]
59
[[link removed]] For
a variety of proposed reforms on term limits, see Chilton et al.,
“Designing Supreme Court Term Limits”; Kermit Roosevelt
III, “Court Reform and the Biden Commission,” _Harvard Journal
of Law and Public Policy per Curiam_, no. 5 (Spring 2022):
1–8, [link removed]
[[link removed]];
Roger C. Cramton, “Reforming the Supreme Court,” _California Law
Review _95 (Fall
2007), [link removed]
[[link removed]]; Calabresi and
Lindgren, “Term Limits”; and Presidential Commission on the
Supreme Court of the United States, _In Support of a Congressional
Statute Establishing an Eighteen-Year Limit on Active Supreme Court
Service, with Emeritus Status Thereafter and a Purely Prospective
Phase-In_, July 20, 2021 (written testimony of Akhil Amar, Sterling
Professor of Law and Political Science, Yale
University), [link removed].

* footnote2_horf01s
[[link removed]]
60
[[link removed]] U.S.
Const., art. III, § 1.
* footnote3_u1tclfc
[[link removed]]
61
[[link removed]] Proposals
similar to the active/senior justice model are sometimes referred to
as the junior/senior justice model. The active/senior justice model is
similar to the term limits bill first introduced by Rep. Ro Khanna in
2020 and reintroduced in 2021. Supreme Court Term Limits and Regular
Appointments Act of 2021, H.R. 5140, 117th Congress
(2021), [link removed].
Rep. Hank Johnson and Sen. Sheldon Whitehouse introduced similar bills
in 2022. See Supreme Court Tenure Establishment and Retirement
Modernization Act of 2022, S. 4706, 117th Congress
(2022), [link removed];
and Supreme Court Tenure Establishment and Retirement Modernization
Act of 2022, H. 8500, 117th Congress
(2022), [link removed].
Two other prominent models also feature 18-year term limits and a
regularized appointment process under which two new justices would be
appointed to the Court every presidential term. Under the
original/appellate jurisdiction model, the Court would be divided into
two panels. One panel would consist of all justices and would hear
cases falling within the Court’s original jurisdiction. A second
panel would hear cases falling within the Court’s appellate
jurisdiction but would consist of only the nine most junior justices.
Justices serving for more than 18 years would sit only on the original
jurisdiction panel, barring a recusal or unexpected vacancy on the
appellate jurisdiction panel. Such justices would also sit by
designation on the lower federal courts. This distinction is rooted in
Article III’s proviso that the Court’s appellate jurisdiction is
subject to “such Exceptions, and under such Regulations as the
Congress shall make.” Under the designated Supreme Court justice
model, presidents would no longer appoint anyone to the office of
judge of the Supreme Court. Instead, when a vacancy occurs, the
president would elevate a sitting federal judge from a lower court to
sit by designation on the Supreme Court for 18 years, after which this
judge would return to service in the lower federal courts and be
replaced by a different sitting federal judge. For more on each of
these models, see Presidential Commission, _Final Report_, 136–40.
* footnote4_yjlxbhd
[[link removed]]
62
[[link removed]] The
position of chief justice is referenced in the Constitution in
connection with presiding over a president’s impeachment trial (Art.
I, §3, cl. 6), but the Constitution is silent as to the selection
process as well as any other duties of the office. The active/senior
justice model maintains the current practice under which the chief
justice is appointed by the president and confirmed by the Senate.
Supreme Court of the United States, “FAQs — General
Information,” accessed May 18,
2023, [link removed]. Some term
limits models propose having the longest-serving active justice on the
Court serve as chief justice, with the position rotating every two
years. See Presidential Commission, _In Support of a Congressional
Statute _(written testimony, Amar). This is similar to chief judge
selection in the lower federal courts, where chief judges assume the
position based on seniority. 28 U.S.C. § 45; 28 U.S.C. § 136. On
state supreme courts, practices vary. In some states the chief justice
is selected by the other justices, while in other states the chief
justice is selected in the same manner as the associate justices are
selected. See, e.g., Amanda Powers and Douglas Keith, “Key 2022
State Supreme Court Election Results and What They Mean,” Brennan
Center for Justice, November 9,
2022, [link removed];
and “Kentucky Supreme Court Elects New Chief Justice,” WYMT,
November 15,
2022, [link removed].

* footnote5_1y68mxs
[[link removed]]
63
[[link removed]] See
Jack Balkin, “Don’t Pack the Court. Regularize
Appointments,” _Balkinization_, October 5,
2020, [link removed].

* footnote6_47ou1cl
[[link removed]]
64
[[link removed]] Frederic
Block, “Senior Status: An Active Senior Judge Corrects Some Common
Misunderstandings,” _Cornell Law Review _92, no. 3 (March 2007):
545, [link removed].

* footnote7_rj31p04
[[link removed]]
65
[[link removed]] Under
the “Rule of 80,” judges become eligible for retirement or senior
status when they reach age 65 and the sum of their age and years of
service as an Article III judge equals 80. See 28 U.S.C. § 371(c);
28 U.S.C. § 371(b); and Block, “Senior Status,” 536.
* footnote8_xikfi1y
[[link removed]]
66
[[link removed]] 28
U.S.C. § 371(a); Block, “Senior Status,” 536.
* footnote9_7hzgdw8
[[link removed]]
67
[[link removed]] 28
U.S.C. § 371(b); Block, “Senior Status,” 536.
* footnote10_fto4nra
[[link removed]]
68
[[link removed]] 28
U.S.C. § 371(e)(1).
* footnote11_axtdoo1
[[link removed]]
69
[[link removed]] 28
U.S.C. § 294.
* footnote12_f1rtmld
[[link removed]]
70
[[link removed]] Jessica
Gresko, “Supreme Court Justice Breyer Has Options as a Retiree,”
Associated Press_, _July 7,
2022, [link removed];
and Jessica Gresko, “Sandra Day O’Connor Withdraws from Public
Life,” Associated Press, October 18,
2018, [link removed].

* footnote13_85lq550
[[link removed]]
71
[[link removed]] See,
e.g., Rory K. Little, “Clerking for a Retired Supreme Court Justice
— My Experience of Being ‘Shared’ Among Five Justices in One
Term,” _George Washington Law Review _88, no. 7 (July 2020):
83–114, [link removed].

* footnote14_c1dignt
[[link removed]]
72
[[link removed]] Under
the active/senior justice model, justices who are younger than 47 at
their swearing in would be elevated to senior status before turning
65. Because the model creates this possibility, adjustments to
existing retirement schemes would be required. But current law sets
the threshold for judges to take senior status at 65 for prudential
reasons, not because the Constitution requires it. Congress has
previously set different thresholds for the retirement of federal
judges. For instance, in the predecessor to current law, the
retirement age was 70. See Block, “Senior Status,” 535.
* footnote15_x8ojn58
[[link removed]]
73
[[link removed]] See
Chilton et al., “Designing Supreme Court Term Limits,” 30–31.
* footnote16_5ztggo8
[[link removed]]
74
[[link removed]] As
new justices become eligible for senior status, they would
functionally serve as an active justice for an additional two years
until another active justice assumes senior status. This cycle would
continue until the uncompleted term was scheduled to expire, at which
point the seat would be filled according to the regular process. While
this would result in one or more justices serving for 20 years, it
would return the Court to nine active members as quickly as possible,
without giving any president an extra appointment. But Congress could
also address this unusual situation in at least two other ways. It
could authorize the president to appoint an interim justice to serve
the remainder of the departing justice’s term. See Calabresi and
Lindgren, “Term Limits,” 827. Alternatively, it could authorize
the president to make an additional appointment at the time of the
next scheduled appointment. See Paul D. Carrington and Roger C.
Cramton, “The Supreme Court Renewal Act: A Return to Basic
Principles,” in _Reforming the Court: Term Limits for Supreme Court
Justices_, ed. Paul D. Carrington and Roger C. Cramton (Durham, NC:
Carolina Academic Press, 2006), 471.
* footnote17_uposcbf
[[link removed]]
75
[[link removed]] Hulse,
“McConnell Suggests He Would Block”; and Seligman, “Court
Packing,” 600–601.
* footnote18_m3zdzuo
[[link removed]]
76
[[link removed]] Should
a vacancy not be filled during a presidential term, it would carry
over to the next four-year term but with the 18-year clock ticking.
For example, a carried-over seat that opened in the first year of a
president’s term would be associated with 14 years of active service
if filled in year 1 of the subsequent presidential term.
* footnote19_he6c2rl
[[link removed]]
77
[[link removed]] Mike
DeBonis and Paul Kane, “John McCain Backs Off Promise Republicans
Would Block Clinton Supreme Court Nominees,” _Chicago Tribune_,
October 17,
2016, [link removed];
Siddiqui, “Republican Senators Vow”; and Hulse, “McConnell
Suggests He Would Block.”
* footnote20_gxe0mug
[[link removed]]
78
[[link removed]] Daniel
Hemel, “Can Structural Changes Fix the Supreme Court?,” _Journal
of Economic Perspectives_ 35, no. 1 (Winter 2021):
137, [link removed].
* footnote21_94r6dxf
[[link removed]]
79
[[link removed]] In
2023, Sen. Jeff Merkley introduced a bill to institute various
fast-track mechanisms that would virtually guarantee that every
Supreme Court nominee receives consideration and a floor vote. See
Every Supreme Court Nominee Deserves Timely Consideration Act, S. 859,
118th Congress
(2023), [link removed].

* footnote22_l6crce9
[[link removed]]
80
[[link removed]] Christopher
M. Davis, “Expedited or ‘Fast-Track’ Legislative Procedures,”
Congressional Research Service, August 31,
2015, [link removed].
* footnote23_5b497yw
[[link removed]]
81
[[link removed]] See
Aaron-Andrew P. Bruhl, “If the Judicial Confirmation Process Is
Broken, Can a Statute Fix It?,” _Nebraska Law Review _85 (2007):
971,
980, [link removed];
and Molly Reynolds, _Exceptions to the Rule: The Politics of
Filibuster Limitations in the U.S. Senate_ (Washington, DC: Brookings
Institution, 2017), 14–37.
* footnote24_r751qd3
[[link removed]]
82
[[link removed]] While
fast-track procedures could result in a nominee being confirmed
without a hearing by the Judiciary Committee, for most of American
history, Supreme Court justices were confirmed without confirmation
hearings. As Sen. John Cornyn has noted, hearings are not
constitutionally required and are a modern invention by Congress. See
John Cornyn, “Our Broken Judicial Confirmation Process and the Need
for Filibuster Reform,” _Harvard Journal of Law and Public
Policy _27, no. 1 (Fall 2003):
227n29, [link removed].

* footnote25_9lazal1
[[link removed]]
83
[[link removed]] See
Michael W. McConnell, “What Are the Judiciary’s
Politics?,” _Pepperdine Law Review_ 45, no. 3 (2018):
479–80, [link removed].
* footnote26_2efg54t
[[link removed]]
84
[[link removed]] See
Reynolds, _Exceptions to the Rule_, 21. Article I, Section 5 provides
that “each House may determine the Rules of its Proceedings.”
While there are potential objections even to statutes that have this
disclaimer, there are numerous similar statutes imposing fast-track
frameworks that have been good law — and by which Congress has
abided — for years. See Bruhl, “If the Judicial Confirmation
Process Is Broken,” 973. If applying this fast-track procedure to
Supreme Court confirmation is deemed unconstitutional, then a wide
range of similar statutes would also be resting on constitutionally
shaky ground. Regardless, if such arguments carry the day, the Senate
could adopt fast-track procedures as a Senate rule. Separately, some
may object to fast-tracking Supreme Court confirmations on the theory
that such a statute would essentially permit the House and the
president to bind the Senate to certain rules governing debate within
the body against the body’s will. However, the Senate would need to
pass any such legislation and would continue to have the power to
change its rules. Moreover, Congress has previously passed statutes
that provide fast-track limitations that apply to only one chamber of
Congress. See Reynolds, _Exceptions to the Rule_, 26.
* footnote27_w95h1c5
[[link removed]]
85
[[link removed]] See
Bruhl, “If the Judicial Confirmation Process Is Broken,”
1012–13.
* footnote28_t812n01
[[link removed]]
86
[[link removed]] Louis
J. Virelli III, “Supreme Court Recusal and the Appearance of
Politics,” _Denver Law Review_, March 29,
2021, [link removed].

* footnote29_nu2gxp2
[[link removed]]
87
[[link removed]] 28
U.S.C. § 1. In 2008, for example, four members of the Court recused
themselves due to financial and personal conflicts of interest in a
case concerning companies that did business in apartheid-era South
Africa. Three justices owned stock in one of the companies, and the
son of a fourth justice worked for one of the firms involved in the
case. Linda Greenhouse, “Justices’ Conflicts Halt Apartheid
Appeal,” _New York Times_, May 13,
2008, [link removed];
and New York Times Editorial Board, “Court Without a
Quorum,” _New York Times, _May 18,
2008, [link removed].
* footnote30_4dgwzqp
[[link removed]]
88
[[link removed]] Historically,
justices have sometimes taken political posts after serving on the
Supreme Court, notwithstanding life tenure. Joshua Zeitz, “The
Supreme Court Has Never Been Apolitical,” _Politico_, April 3,
2022, [link removed].

* footnote31_ux57lxi
[[link removed]]
89
[[link removed]] Amanda
Frost, “Judicial Ethics and Supreme Court
Exceptionalism,” _Georgetown Journal of Legal Ethics_ 26, no. 3
(Summer 2013):
478, [link removed].

* footnote32_c4egw8s
[[link removed]]
90
[[link removed]] See
United States Courts, “Code of Conduct for United States Judges,”
March 12, 2019, [link removed]; and
Frost, “Judicial Ethics.”
* footnote33_byi7ozr
[[link removed]]
91
[[link removed]] Alison
Durkee, “Trust in Supreme Court Drops to New Low, Poll Finds as
Ethics Bill Moves Forward in House,” _Forbes_, May 13,
2022, [link removed];
and Nate Raymond, “Most Judges in Survey Support U.S. Supreme Court
Having an Ethics Code,” Reuters, June 22,
2022, [link removed]–06–22
[[link removed]].

* footnote34_org2njm
[[link removed]]
92
[[link removed]] United
States Courts, “Code of Conduct for United States Judges.”
* footnote35_ngk77f0
[[link removed]]
93
[[link removed]] Johanna
Kalb and Alicia Bannon, “Supreme Court Ethics Reform,” Brennan
Center for Justice, September 24,
2019, www.brennancenter.org/sites/default/files/2019–09/Report_2019_09_SCOTUS_Ethics_FINAL.pdf
[[link removed]].

* footnote1_xsujgta
[[link removed]]
94
[[link removed]] Alicia
Bannon, “An Overlooked Idea for Fixing the Supreme Court,” Brennan
Center for Justice, March 12,
2021, [link removed].

* footnote2_o9xl1ir
[[link removed]]
95
[[link removed]] Micah
Schwartzman and David Fontana, “Trump Picked the Youngest Judges to
Sit on the Federal Bench. Your Move, Biden,” _Washington Post_,
February 21,
2021, [link removed]
[[link removed]].

* footnote3_dfgynxs
[[link removed]]
96
[[link removed]] Supreme
Court of the United States, “FAQs — Supreme Court Justices,”
accessed June 6,
2023, [link removed]; and
Presidential Commission, _Final Report_, 114–15.
* footnote4_0u6pasl
[[link removed]]
97
[[link removed]] Jason
P. Davis and Kathleen M. Eisenhardt, “Rotating Leadership and
Collaborative Innovation: Recombination Processes in Symbiotic
Relationships,” _Administrative Science Quarterly_ 56, no. 2
(2011): 194; and Amir Erez, Jeffrey A. Lepine, and Heather Elms,
“Effects of Rotated Leadership and Peer Evaluation on the
Functioning and Effectiveness of Self-Managed Teams: A
Quasi-Experiment,” _Personnel Psychology_ 55, no. 4 (December
2006): 929, [link removed]–6570.2002.tb00135.x
[[link removed]]. See also
Presidential Commission, _Final Report_, 136–40.
* footnote5_jpa27mn
[[link removed]]
98
[[link removed]] Roberts
to Fielding, Re: DOJ Proposed Report on S.J. 93.
* footnote6_q7loaju
[[link removed]]
99
[[link removed]] Jessica
Campisi and Brandon Griggs, “Of the 115 Supreme Court Justices in US
History, All but 7 Have Been White Men,” CNN, March 24,
2022, [link removed];
and Jesse Wegman, “What If the Supreme Court Had an L.G.B.T.
Justice?,” _New York Times_, October 12,
2019, [link removed].

* footnote7_3g0arna
[[link removed]]
100
[[link removed]] Alicia
Bannon, “A Public Defender on the High Court,” Brennan Center for
Justice, March 1,
2022, [link removed].
See also Jay Schweikert, “Professional Diversity Is Essential for
the Supreme Court to Enforce the Constitution,” Cato Institute,
March 21,
2022, [link removed].

* footnote8_fetlqpa
[[link removed]]
101
[[link removed]] Alicia
Bannon and Douglas Keith, “What Research Shows About the Importance
of Supreme Court Diversity,” Brennan Center for Justice, February 1,
2022, [link removed].

* footnote9_b511ha7
[[link removed]]
102
[[link removed]] Hamilton, _Federalist_ No.
78.
* footnote10_rgxxrzi
[[link removed]]
103
[[link removed]] Presidential
Commission, _Closing Reflections _(statement, Greene), 6; and
Presidential Commission, _Term Limits and Turnover _(written
testimony, Ginsburg), 6. While studies of state courts have shown that
fears about job security impact judicial independence, they have also
shown that state court judges facing a mandatory retirement age
without a future election demonstrate greater independence from
political pressure. See Alicia Bannon, “Choosing State Judges: A
Plan for Reform,” Brennan Center for Justice, October 10,
2018, [link removed].

* footnote11_leniwie
[[link removed]]
104
[[link removed]] “Presumably,
what relieves judges of the incentive to please is not the prospect of
indefinite service, but the awareness that their continuation in
office does not depend on securing the continuing approval of the
political branches. Independence, therefore, could be achieved by
mandating fixed, nonrenewable terms of service.” Henry Paul
Monaghan, “The Confirmation Process: Law or Politics?,” _Harvard
Law Review_ 101 (1988):
1211, [link removed].

* footnote12_s2eygoj
[[link removed]]
105
[[link removed]] In
fact, the multi-decade terms enabled by life tenure may actually be
detrimental to judicial independence on the lower courts. Because of
the high stakes that come with life tenure, justices are increasingly
nominated and confirmed on the basis, at least in part, of a
demonstrable showing of a particular judicial ideology. See David R.
Dow and Sanat Mehta, “Does Eliminating Life Tenure for Article III
Judges Require a Constitutional Amendment?,” _Duke Journal of
Constitutional Law and Public Policy _16 (2021):
108, [link removed]. If a seat
on the Court no longer came with the power to oversee the law for
multiple generations, lower court judges might be less incentivized to
use opinion-writing to stake out political positions. See Sen. Sheldon
Whitehouse, “The Scheme 13: Auditioning,” March 15,
2022, [link removed]-.

* footnote13_3mg80i6
[[link removed]]
106
[[link removed]] Gary
Langer, “More Say Politics, Not the Law, Drive Supreme Court
Decisions: POLL,” ABC News, May 9,
2023, [link removed].

* footnote14_nex4wrc
[[link removed]]
107
[[link removed]] See
Judge Paul L. Friedman, “Threats to Judicial Independence and the
Rule of Law,” American Bar Association, November 18,
2019, [link removed].

* footnote15_ym55d9y
[[link removed]]
108
[[link removed]] See
Epps and Sitaraman, “How to Save the Supreme Court,” 174.
* footnote16_a7k1xll
[[link removed]]
109
[[link removed]] Jeremy
Diamond, “Trump Unveils His Potential Supreme Court Nominees,”
CNN, May 18
2016, [link removed];
Tessa Berenson, “Watch Clinton Describe Her Ideal Supreme Court
Justice,” _Time_, March 9,
2016, [link removed];
and Dan Mangan, “Trump: I’ll Appoint Justices to Overturn Roe v.
Wade Abortion Case,” CNBC, October 19,
2016, [link removed].

* footnote17_64jfhu8
[[link removed]]
110
[[link removed]] Quint
Forgey, “Biden Says He’ll Release List of Black Women as Potential
SCOTUS Nominees,” _Politico_, June 30,
2020, [link removed].

* footnote18_14b17it
[[link removed]]
111
[[link removed]] David
E. Pozen, “Hardball and/as Anti-Hardball,” _New York University
Journal of Legislation & Public Policy_ 21, no. 4 (2019):
951, [link removed].
* footnote19_xm8z9ul
[[link removed]]
112
[[link removed]] United
States House of Representatives, “Party Government Since 1857,”
accessed June 4,
2023, [link removed].

* footnote1_lrzzitp
[[link removed]]
113
[[link removed]] As
Hamilton writes in _Federalist_ 78, good-behavior tenure “is an
excellent barrier to the despotism of the prince; in a republic it is
a no less excellent barrier to the encroachments and oppressions of
the representative body.” See also Sanford Levinson, “Life Tenure
and the Supreme Court: What Is to Be Done?,” in _Reforming the
Court: Term Limits for Supreme Court Justices_, 379.
* footnote2_baxljlj
[[link removed]]
114
[[link removed]] U.S.
Const. art. I, § 8. See also _An Ethical Judiciary: Transparency and
Accountability for the 21st Century Courts, Hearing Before the
Subcomm. on Federal Courts, Oversight, Agency Action and Federal
Rights_, 117th Cong. (2022), 455–57 (written testimony of Amanda
Frost, Bronfman Professor of Law and Government, American University
Washington College of
Law), [link removed];
and Presidential Commission, _In Support of a Congressional
Statute _(written testimony, Amar).
* footnote3_17clw0b
[[link removed]]
115
[[link removed]] U.S.
Supreme Court, “About the Court: The Court as an Institution,”
accessed March 23,
2023, [link removed]. See also
Congressional Research Service, “‘Court Packing’: Legislative
Control over the Size of the Supreme Court,” December 14,
2020, [link removed].
* footnote4_orr8hk4
[[link removed]]
116
[[link removed]] Christopher
Jon Sprigman, “Congress’s Article III Power and the Process of
Constitutional Change,” _New York University Law Review_ 95, no. 6
(December 2020):
1778–1859, [link removed].
On exercises of Congress’s authority to deny federal courts any
power to review certain laws, see Dawn M. Chutkow, “Jurisdiction
Stripping: Litigation, Ideology, and Congressional Control of the
Courts,” _Journal of Politics_ 70, no. 4 (2008):
1058, [link removed].

* footnote5_yigsus5
[[link removed]]
117
[[link removed]] Martha
J. Dragich, “Once a Century: Time for a Structural Overhaul of the
Federal Courts,” _Wisconsin Law Review_ 11 (1996):
73, [link removed].
* footnote6_le5ph4p
[[link removed]]
118
[[link removed]] Steven
G. Calabresi and David C. Presser, “Reintroducing Circuit Riding: A
Timely Proposal,” _Minnesota Law Review _90 (2006):
1390–91, [link removed].

* footnote7_nrarlaq
[[link removed]]
119
[[link removed]] Stuart
v. Laird, 5 U.S. 299 (1803).
* footnote8_9td3kws
[[link removed]]
120
[[link removed]] Calabresi
and Presser, “Reintroducing Circuit Riding,” 1406–09.
* footnote9_z9aztgq
[[link removed]]
121
[[link removed]] U.S.
Const. art. II, § 2.
* footnote10_z8dugfy
[[link removed]]
122
[[link removed]] U.S.
Const. art. III, § 1.
* footnote11_k5dhbn0
[[link removed]]
123
[[link removed]] Booth
v. United States, 291 U.S. 339, 350–51 (1934).
* footnote12_m60h35k
[[link removed]]
124
[[link removed]] _Booth_,
291 U.S. at 351, 354.
* footnote13_fgmsl7a
[[link removed]]
125
[[link removed]] U.S.
Const. art. III, § 1.
* footnote14_wqz74fe
[[link removed]]
126
[[link removed]] Nguyen
v. United States, 539 U.S. 69, 72 (2003).
* footnote15_ryrpcxg
[[link removed]]
127
[[link removed]] See
Bank of N.Y. Melon v. Stafne, 824 F. App’x 536, 536 (9th Cir. 2020);
Steckel v. Lurie, 185 F.2d 921, 925 (6th Cir. 1950); Hoang v. Bank of
Am., N.A., No. C17–0874JLR, 2021 WL 615299, at *1 (W.D. Wash. Feb.
17, 2021), aff’d, 820 F. App’x 594, 595 (9th Cir. 2020); Rodgers
v. Knight, No. 2:13–04033-CV-C-NKL, 2013 WL 12184288, at *1 (W.D.
Mo. July 1, 2013), aff’d, 781 F.3d 932 (8th Cir. 2015); Ezor v. Yee,
No. CV 22–840 JVS (AGR), 2023 WL 2554162, at *2 (C.D. Cal. Mar. 2,
2023); Stafne v. Burnside, No. C16–0753-JCC, 2022 WL 2073074, at *2
(W.D. Wash. June 9, 2022); Stafne v. Zilly, 337 F. Supp. 3d 1079,
1097–98 (W.D. Wash. 2018); Bluwav Sys., LLC v. Durney, No.
09–13878, 2012 WL 5392301, at *1 (E.D. Mich. Nov. 5, 2012). See also
Hon. Betty Binns Fletcher_, _“A Response to Stras & Scott’s Are
Senior Judges Unconstitutional?,” _Cornell Law Review_ 92, no. 3
(2007):
523–32, [link removed].

* footnote16_9tzeh9t
[[link removed]]
128
[[link removed]] See
E. Jon A. Gryskiewicz, “The Semi-Retirement of Senior Supreme Court
Justices: Examining Their Service on the Courts of Appeals,” _Seton
Hall Circuit Review_ 11 (2015):
285–326, [link removed].

* footnote17_3pc37w6
[[link removed]]
129
[[link removed]] Gryskiewicz,
“The Semi-Retirement of Senior Supreme Court Justices,” 293–98.
* footnote18_ln0845k
[[link removed]]
130
[[link removed]] _Booth, _291
U.S. at 350.
* footnote19_4bycr82
[[link removed]]
131
[[link removed]] Under
this argument, Article III’s statement that “the Judges, both of
the supreme and inferior Courts, shall hold their Offices during good
Behaviour” is read to imply that they will hold
their _respective_ offices during good behavior. Proponents of this
argument further point to the Appointments Clause, which identifies
“Judges of the supreme Court” as a category, and to a provision in
Article I providing that the Chief Justice shall preside over
impeachment trials. See Calabresi and Lindgren, “Term Limits,”
859–68; and Scott Bloomberg, “Reform Through Resignation: Why
Chief Justice Roberts Should Resign (in 2023),” _Iowa Law Review
Online_ 106 (July 7, 2021):
30, [link removed]–11/Reform%20Through%20Resignation-%20Why%20Chief%20Justice%20Roberts%20Should%20Resign%20%28in%202023%29%20.pdf
[[link removed]].

* footnote20_f9i7odd
[[link removed]]
132
[[link removed]] 28
U.S.C. § 371(e); 28 U.S.C. § 294(d).
* footnote21_il2zlhe
[[link removed]]
133
[[link removed]] U.S.
Const., art. II, § 2.
* footnote22_5fjzal2
[[link removed]]
134
[[link removed]] Weiss
v. United States, 510 U.S. 163 (1994). See also Presidential
Commission, _Final Report_, 131.
* footnote23_udfyi7b
[[link removed]]
135
[[link removed]] Presidential
Commission, _Final Report_, 131–32. Prior to serving as a U.S.
senator, Josh Hawley endorsed the adoption of Supreme Court term
limits by statute because “Article III demands that judges be
appointed for life, but it does not necessarily require that Supreme
Court justices serve for life — provided they remain judges when not
on the Court.” Joshua D. Hawley, “The Most Dangerous
Branch,” _National Affairs_, July
2012, [link removed].

* footnote24_7m221af
[[link removed]]
136
[[link removed]] In
2020, 29 professors signed an open letter supporting a similar
statutory proposal. See Fix the Court, “Open Letter of
Law Professors Supporting H.R. 8424,” October 23, 2020,
[link removed]–10.23.20f.pdf
[[link removed]].
In 2009, 31 scholars sent a letter to then vice president Biden, then
attorney general Holder, and the Senate and House Judiciary Committees
containing four proposals to include in a potential Judiciary Act of
2009. Among those proposals was one for 18-year terms and regularized
appointments. See Eliza Presson, “Group’s Proposals for Supreme
Court Reform,” _SCOTUSblog_, February 16,
2009, [link removed].
And in 2005, 45 law professors “in principle” supported another,
similar statutory proposal. See Paul D. Carrington and Roger C.
Cramton, “The Supreme Court Renewal Act: A Return to Basic
Principles,” July 5, 2005, [link removed]. See also
Roosevelt, “Court Reform and the Biden Commission”; Michael C.
Blumm, Kate Flanagan, and Annamarie White, “Right-Sizing the Supreme
Court: A History of Congressional Changes,” _Case Western Reserve
Law Review _72, no. 1 (2021):
10n4, [link removed];
Balkin, “Don’t Pack the Court”; Roger C. Cramton,
“Constitutionality of Reforming the Supreme Court by Statute”
in _Reforming the Court: Term Limits for Supreme Court Justices_,
359–60; Cramton, “Reforming the Supreme Court”; Paul D.
Carrington, “Checks and Balances: Congress and the Federal Courts”
in _Reforming the Court: Term Limits for Supreme Court Justices_,
138–39; Levinson, “Life Tenure and the Supreme Court; Judith
Resnik, “Judicial Selection and Democratic Theory: Demand, Supply,
and Life-Tenure,” _Cardozo Law Review_ 26 (January 2005):
640–41, [link removed];
and Presidential Commission, _In Support of a Congressional
Statute _(written testimony, Amar).
* footnote1_oojbugg
[[link removed]]
137
[[link removed]] See
Chilton et al., “Designing Supreme Court Term Limits.”
* footnote2_i6k2ern
[[link removed]]
138
[[link removed]] See
Supreme Court Term Limits and Regular Appointments Act of 2021, H.R.
5140.
* footnote3_wtjpj7d
[[link removed]]
139
[[link removed]] See
Hemel, “Can Structural Changes Fix the Supreme Court?”
* footnote4_x3ee9yd
[[link removed]]
140
[[link removed]] Chilton
et al., “Designing Supreme Court Term Limits,” 42.
* footnote5_t3os4xr
[[link removed]]
141
[[link removed]] Hemel,
“Can Structural Changes Fix the Supreme Court?,” 137; and Tracey
E. George and Chris Guthrie, “Remaking the United States Supreme
Court in the Courts’ of Appeals Image,” _Duke Law Journal_ 58,
no. 7 (2000):
1442, [link removed].
* footnote6_jl92hb7
[[link removed]]
142
[[link removed]] Ballotpedia,
“United States Court of Appeals,” accessed March 23,
2023, [link removed].
* footnote7_sasqpmp
[[link removed]]
143
[[link removed]] 28
U.S.C. § 46(c).
* footnote8_l9i3gw7
[[link removed]]
144
[[link removed]] Canada’s
Supreme Court has nine justices, Australia’s seven, New Zealand’s
six, and Argentina’s five, though unlike the U.S. Supreme Court,
those high courts have limits on how long a judge can serve.
Presidential Commission, _Closing Reflections _(statement, Greene),
23.
* footnote9_i0f1gei
[[link removed]]
145
[[link removed]] Presidential
Commission, _Final Report, _79.
* footnote10_999gstd
[[link removed]]
146
[[link removed]] Bannon,
“An Overlooked Idea”; and George and Guthrie, “Remaking the
United States Supreme Court,” 1458–65.
* footnote11_ja2qip2
[[link removed]]
147
[[link removed]] Eric
J. Segall, “Eight Justices Are Enough: A Proposal to Improve the
United States Supreme Court,” _Pepperdine Law Review_ 45, no. 3
(2018): 547,
557, [link removed].

* footnote12_j3hje9c
[[link removed]]
148
[[link removed]] Todd
Richmond, “Supreme Court’s Kagan Says Scalia Death Forced
Compromises,” Associated Press, September 8,
2017, [link removed].
Some scholars have argued that fixing the Court at an even number is a
commendable policy in itself not only because it would moderate the
Court, but also because it would reduce the Court’s power to decide
close constitutional questions with a bare majority. See Michael
Miller and Samuel A. Thumma, “It’s Not Heads or Tails: Should
SCOTUS Have an Even or Odd Number of Justices?,” _Southern
California Interdisciplinary Law Journal_ 31, no. 1 (2021):
45–48, [link removed]–1-Thumma.pdf
[[link removed]].
See also Adam Liptak, “A Supreme Court Not So Much Deadlocked as
Diminished,” _New York Times_, May 17,
2016, [link removed].

* footnote13_8tpun0j
[[link removed]]
149
[[link removed]] See
S. 4706 and H. 8500, 117th Congress (2022). See also James E. DiTullio
and John B. Schochet, “Saving This Honorable Court: A Proposal to
Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable
Eighteen-Year Terms,” _Virginia Law Review_ 90, no. 4 (May 2004):
1148n185, [link removed].

* footnote14_0lzr5p9
[[link removed]]
150
[[link removed]] See
Chilton et al., “Designing Supreme Court Term Limits,” 40.
* footnote15_ow84eel
[[link removed]]
151
[[link removed]] This
process would take 16 years after the first currently serving justice
retires or takes senior status. While the precise projected duration
of a current justice’s term would vary depending on the date that
Congress selects to trigger the vacancies, if implemented in January
2025 this would approximately result in all current justices serving a
term of at least 18 years: Justice Thomas will have served for 33
years; Justice Roberts for 21 years; Justice Alito for 23 years;
Justice Sotomayor for 21 years; Justice Kagan for 22 years; and
Justices Gorsuch, Kavanaugh, Barrett, and Jackson for 18 years each.
* footnote16_8907wr8
[[link removed]]
152
[[link removed]] To
implement this transition, Congress would establish a schedule for
future appointments, which would be integrated with retirements as
they naturally occur by varying the term lengths of newly appointed
justices to adjust to the nearest slot on the schedule. Chilton et
al., “Designing Supreme Court Term Limits,” 28.
* footnote17_r1y06oh
[[link removed]]
153
[[link removed]] Chilton
et al., “Designing Supreme Court Term Limits,” 29.
* footnote1_o2gflo4
[[link removed]]
154
[[link removed]] Presidential
Commission, _Final Report_, 140–42.
* footnote2_lwr6m1p
[[link removed]]
155
[[link removed]] See
Bannon, “Choosing State Judges”; and Ian Millhiser, “Britain’s
Brilliant Method of Picking Supreme Court Justices,
Explained,” _Vox_, September 25,
2019, [link removed].

* footnote1_sktjko7
[[link removed]]
156
[[link removed]] Kalb
and Bannon, “Supreme Court Ethics Reform.”
* footnote2_i87ar96
[[link removed]]
157
[[link removed]] Joel
Rose and Liz Baker, “6 in 10 Americans Say U.S. Democracy Is in
Crisis as the ‘Big Lie’ Takes Root,” NPR, January 3,
2022, [link removed].

* footnote3_re9cpkw
[[link removed]]
158
[[link removed]] Jones,
“Supreme Court Trust.”

_ALICIA BANNON is the director of the Judiciary Program at the Brennan
Center for Justice, where she works to realize a fair and inclusive
judicial system that protects fundamental rights, democratic values,
and the rule of law. An experienced constitutional lawyer and expert
on the courts and access to justice in the legal system, Bannon leads
a team of lawyers and researchers engaged in policy advocacy,
litigation, legislative campaigns, research and analysis, and public
education. Bannon also serves as the editor-in-chief of State Court
Report, a Brennan Center publication focused on state courts and state
constitutional law._

_Bannon is the author of numerous nationally recognized reports and
pieces of legal scholarship, and she regularly writes and comments for
media outlets such as the New York Times, Washington
Post, Atlantic, Slate, MSNBC, and NPR.  She has provided testimony,
briefings, and policy advice to lawmakers across the country and
taught as an adjunct professor at NYU School of Law and Seton Hall Law
School._

_Bannon has held numerous prior roles at the Brennan Center, including
managing the Center’s redistricting project and serving as the
managing director of the Democracy Program. She first came to the
Brennan Center as a Liman Fellow and counsel in the Justice Program._

_Prior to joining the Brennan Center, Bannon was a John J. Gibbons
Fellow in public interest and constitutional law at Gibbons P.C. in
Newark, New Jersey, where she litigated a wide range of civil rights
cases. She clerked for the Hon. Sonia Sotomayor in the United States
Court of Appeals for the Second Circuit and the Hon. Kimba M. Wood in
the United States District Court for the Southern District of New
York. Bannon received her JD from Yale Law School and graduated from
Harvard College summa cum laude with a degree in social studies. Prior
to law school, Bannon worked in Kenya and Uganda, managing impact
evaluations of education and health interventions, and at the Center
for Global Development in Washington, DC._

_MICHAEL MILOV-CORDOBA is a fellow in the Brennan Center’s Judiciary
Program, where he focuses on state constitutionalism and promoting
fair, diverse, and impartial courts. Prior to joining the Brennan
Center, Michael served as a law clerk to the Hon. Alvin W. Thompson of
the United States District Court for the District of Connecticut.
Michael received his JD from NYU School of Law, where he served as the
Senior Online Editor of NYU Law Review and was the recipient of the
Gary E. Moncrieffe Award. During law school, Michael interned at Demos
and the Texas Civil Rights Project and was a participant in the Racial
Equity Strategies Clinic and the Civil Rights Clinic at NYU. He holds
a master’s degree in Political Science from Columbia University and
a bachelor’s degree, summa cum laude, in Law, Jurisprudence, and
Social Thought from Amherst College._

_THE BRENNAN CENTER FOR JUSTICE is a nonpartisan law and policy
institute._

_We strive to uphold the values of democracy. We stand for equal
justice and the rule of law. We work to craft and advance reforms that
will make American democracy work, for all._

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