Why SCOTUS Term Limits are Necessary

Shaindi Schwebel, Jul 1, 2021

In an 1855 speech, Republican Senator William Seward called on his Northern supporters to elect antislavery candidates who represented their true interests. His rationale was eerily reminiscent of today’s rhetoric; only about 1% of the nation owned slaves, he told the crowd, though slave owners were at the helm of every branch of government. “The people of the United States do not prefer the wealth of the few to the liberty of the many,” Seward declared [1]. Sure enough, a decade later and following the bloodiest war in American history, abolitionists won their fight. 


Rarely do political systems function as they are meant to, but the success of the abolition movement was a shining moment for ours. The Thirteenth and Fourteenth Amendments proved that the American system is, in fact, capable of meaningful change, however stubborn it may be.


In contrast, modern-day U.S. politics make even the most incremental changes look like monumental achievements. An interesting trend has emerged: while reforms slow, even stagnate, public perception of government declines in kind.


Despite expressing pessimism and distrust toward their elected officials in survey after survey [2], Americans also seem complacent with “that’s just how it is around here,” a mentality set on never veering too far from the status quo.


These competing outlooks—that nothing ever changes, and that there is no point in trying to effect change, since it won’t work anyway—only deepen existing divides. To break free of this cycle of incrementalism, we must start at the top: the U.S. Constitution.


At some point in the past several decades, we must have collectively decided that constitutional amendments simply were no longer worth the trouble. That mindset needs to change.


It should be noted that the United States is exceptional among western countries in a multitude of ways, not the least of which is our steadfast commitment to a bicentenarian document full of vague language and sparsely guaranteed liberties [3,4]. Nevertheless, American lore would have us believe that the Founding Fathers crafted an ingeniously self-regulating government, with checks and balances eliminating the need for reconfiguration. No country is perfect, we are told, but this country is as close to perfect as it gets.


Yet even the Framers understood their document was incomplete when they wrote it; otherwise they would not have provided for edits [5].


Consider the fact that, a mere century ago, the country was eager to amend the Constitution just to ban the sale of alcohol (Prohibition), only to amend it yet again several years later to reverse the previous amendment [6]. The Eighteenth and Twenty-First Amendments are meaningless nowadays, but they illustrate a motivation to update our constitution in alignment with the ever-adjusting priorities of the American people. Such impetus just doesn’t seem to exist anymore.


The problem with the Constitution is that its ambiguous language and antiquated phraseology leaves far too much room for interpretation. To help us make sense of the text, we assign nine people the role of Supreme Court Justice and task them with determining the constitutionality of modern statutes. Free to develop their own theories of constitutional interpretation, these Justices make decisions that will impact the nation for generations to come—sometimes for the better, and sometimes for the worse.


Crucially, the U.S. is, by most accounts, the only country in the world that gives its judges such liberty to interpret its constitution as the Court sees fit. Chief Justice Charles Evans remarked in the 1930s that SCOTUS’s interpretive power is “distinctly American in concept and function” [5].


Oftentimes SCOTUS fancies itself, and is hailed as, the ultimate arbiter of what the Framers really “intended” this country to look like. The late Justice Antonin Scalia, for instance, was famed for his fidelity to the “original meaning,” a belief that the Constitution should be read in the context of the times in which it was written. In a 2012 speech at Princeton University, Scalia denounced the idea of a “living Constitution;” he argued that “nine unelected lawyers living in a marble palace” cannot be expected to “have their thumb on the pulse of the American people” [7]. He argued that legislation fitting the “evolving standards of decency” should be in the purview of Congress, rather than the Court.


In this regard he was correct, but not for the reasons he claimed.


Indeed, Congress should act to mediate the disconnect between those marble-palace lawyers and the public moral conscience—by amending the Constitution. In passing clear, straightforward amendments that unambiguously promise rights to the American people, Congress could eliminate the need for interpretation of old-fashioned terminology, and effectively limit the Court’s vast interpretive freedom.


Justices exercise their personal theories of constitutional interpretation to decipher confusing words like “privacy”— leaving our fates to the whims of these nine individuals. The “cruel and unusual punishment” clause of the Eighth Amendment is particularly contentious; Justice Scalia and other originalists read it with respect to the thought process behind its adoption. When it came to the death penalty, Scalia contended that because “not a single person” considered the death penalty cruel or unusual when the Bill of Rights was ratified, it is ridiculous for the Court to rule otherwise [7].


By this logic, however, there should still be public hangings in town squares.


The word “unusual” is critical because it is a relative term; it can only be defined by what it is not. Likewise, what is “cruel” cannot be determined without considering what its fair counterpart would be. In the late 19th century, many things that we know today to be quite cruel and extremely unusual (slavery, to name one) were not considered cruel, and were in fact quite usual. It is safe to say that James Madison’s mindset when he penned the clause is no longer in line with the values of a modern society.


When the Court renders a decision, it becomes precedent—or, in SCOTUS lingo, stare decisis—and is considered final, barring extenuating circumstances. This is ostensibly meant to give decisions some semblance of stability and predictability.


Over the past few decades, the Court has reaffirmed on multiple occasions [8,9] that it is unconstitutional to sentence a juvenile to life without parole (LWOP), and that this does constitute a cruel and unusual punishment. The latter, at least, is most definitely true about LWOP; the United States is the only country in the world that ever passes down such a punishment to minors [9].


In April 2021, however, the new 6-3 majority overturned those past decisions, ruling that a judge had a constitutional basis for sentencing a 15-year-old to LWOP [8]. The Court upheld the conviction contrary to stare decisis, and contrary to the argument that the sentence had violated the now-31-year-old’s Eighth Amendment rights. Justice Sonya Sotomayor lambasted the majority opinion, criticizing its blatant disregard for precedent. She argued in her dissent that this decision sets the stage for states to continue sentencing juvenile offenders to LWOP, despite the fact that it violates international human rights laws [9]. Stare decisis obviously does not provide the stability or predictability that it claims to.


Instead of poring over specific language and debating its proper definition to the detriment of the American people, it would behoove us to reinvigorate efforts to amend the Constitution and avoid these debates altogether.


To address the elephant: the United States is not a “pure democracy,” nor was it intended as such; a more accurate title is “republic.” The Framers were wary of so-called factions who could join together and subject the rest of the citizens to “the superior force of an interested and overbearing majority” [10]. James Madison argued in Federalist No. 10 that a pure democracy and popular voting system only work in smaller societies, such as states and municipalities. When applied on a greater scale, it would be impossible to account for the entire population's varied needs.


A more cynical reading than Madison’s would be that the system is built on elitist structures, whether deliberately or otherwise. In 1789, the uneducated electorate comprised the national majority, and in a popular voting system they would have far outnumbered the land-owning white men—notably, the Framers themselves. The Constitution in its original iteration did, after all, exclude some 80-90% of the nation from its electorate; this ensured the interests of the few could not be outweighed by the interests of the many [11].


Just because the U.S. was not meant to be a “pure” democracy does not mean that we must always govern that way. We all want and deserve to be represented accurately and fairly by our governmental institutions.


Accurate representation is achieved not only through the officials we elect, but through the values that our society purports to uphold. Our laws and the way we treat each other must reflect the direction  in which we, the people, want this country to progress. Thus, it logically follows that policy would at least be adjacent to general public sentiment in most instances.


We needn’t look further than the Supreme Court to understand that this is frequently not the case. A recent poll even found that “only 49% of Americans have a ‘great deal’ or a ‘fair amount’ of confidence in decisions made by Supreme Court Justices” [12]. The Constitution affords these nine Justices enormous influence on our fate as a country, despite the proportional gap between the Court’s stances and the will of the people. This is not what representation should look like.


Take 2015’s landmark case, Obergefell v. Hodges, in which SCOTUS deemed it unconstitutional to bar gay couples from marriage [13]. Many Americans, the substantial majority of whom were in favor of same-sex marriage at the time [14], celebrated the decision. Even so, it was hardly a foregone conclusion: had even a single Justice in the narrow five-four majority chosen a different mode of interpretation of the Fourteenth Amendment, the popular measure may not have gone through. The Supreme Court should not be an independent governing body that is unaccountable to democratic demands, but it certainly seems to function as one.


In the current state of affairs, the whims of the few override the values of the many.


There are many courses of action that need to be taken, and multiple amendments that should be ratified; one of the first steps is implementing term limits on Supreme Court Justices. Article III of the Constitution states that federal judges are appointed by the president to “hold their offices during good Behavior” [15], which includes those on the highest Court. We’ve taken the “good Behavior” clause to mean that judges get life tenure, and their terms only end in death or retirement (or, in one rare instance, impeachment).


For those keeping track, this is yet another area in which Americans are unique; the U.S. is the only democratic nation in the world that offers its judges and justices a lifetime appointment [15]. Like so many other relics of 17th-century English common law that inspired the American system, even the Brits themselves have since abandoned the life tenure provision.


The effects of this provision are expansive. For one, it undermines presidential term limits. Per the Twenty-Second Amendment, Americans only consent to be governed by an elected president for a maximum of two four-year terms, after which a new administration gets the opportunity [16]. However, because of life tenure, even a one-term president can impact the country for decades to come through their judge appointments— long after the governed have rescinded their consent.


The Framers intended for life tenure to promote judicial independence. The idea was that if a judge is not concerned with losing their job, they would be less beholden to external influences. Federal judge appointments are anything but apolitical nowadays, however.


Despite the commonly held belief that candidates do not actively campaign for positions to which they are not directly elected, candidates do, in fact, campaign— for a party of one. Dark money groups with ties to the White House often bolster certain nominees over others, even if their choices have conflicts of interest or are less qualified for the job [17]. Brett Kavanaugh’s 2018 nomination, for example, was secured by tens of millions of dollars in anonymous donations to the Judicial Crisis Network along with advertisements paid for by various political committees [17]. Without proper SCOTUS term limits, presidents are also incentivized to nominate younger, potentially less experienced or underqualified judges to further extend their influence on the Court [18].


Additionally, life tenure means that Justices can spend the entire duration of their lives on the Court with no accounting for their advanced age. Historical evidence points to instances where a Justice’s mental or physical capacities were inhibited while casting decisive votes [19]. In some cases, illnesses of age can be “so severe as to deprive Justices of the ability to competently handle their duties without substantial help” [19]. Legal scholars have long warned that this threatens the Court’s legitimacy, particularly when the public is made aware of a Justice’s health [19]. If that Justice does not yet wish to step down, Americans have little course of action to remove them.


One has to wonder if life tenure truly makes our justice system fairer; does it ensure an independent judiciary, or does it bestow an inordinate amount of power onto a small group of flawed individuals?


Term limits are the only path towards a Supreme Court that actually resembles the will of the public. SCOTUS nominations have become an anxiety-riddled game of political “Guess-Who?”, beginning with the eagerly anticipated— or feared, depending on one’s ideology—retirement or death of a Justice. Each new SCOTUS nomination gives rise to strife among citizens and a power struggle among their elected officials.


In the case of retirement, Justices are frequently scrutinized for the timing of their departure from the Court, and the surrounding political circumstances [20]. To reiterate: Supreme Court Justices by no means apolitical. They are aware of the climate, the dominant political party, and the likelihood that an incumbent president will leave office. According to analyses of SCOTUS retirement trends, a Justice is 2.6 times more likely to resign during the first two years of a presidential term, if the incumbent is of the same party as the president who nominated that Justice [20].


The case for SCOTUS term limits has gained significant traction in recent years. Recommendations vary, but the most popular option is to implement a fixed 18-year term for a Supreme Court Justice [21]. This would be achieved through a constitutional amendment, but is not without prior example: Article III, Section 2 was altered by the Eleventh Amendment in 1913 [22]. Section 1’s “good Behavior” clause can be altered as well.


Justices would not suffer from these revised terms, for it gives them ample time to sit on the Court before stepping down to enjoy their retirement and pension. Meanwhile, the nation would benefit greatly from SCOTUS term limits; an April 2021 Reuters-Ipsos poll revealed that 63% of Americans are in favor of ending lifetime appointments on the Supreme Court [12]. The choice is clear, for it would afford us a much-needed end to the uncertainty and unpredictability of their tenures.


Instead of waiting until a justice retires or worrying about one dying before the election, we’d be assured that every 18 years a new justice would replace the existing one. Terms could be staggered so that, for example, a Justice would step off the Court every two years— restoring a norm that persisted for the first 180 years of U.S. history [19]. This ensures that every time a president is elected or reelected by the American people, that president is guaranteed two Supreme Court nominations.


It is high time we restore the power into the hands of the American people, and tackle systemic elitism and disproportionate division of power by restructuring the way our leadership is chosen and behaves. SCOTUS term limits is just one of many admittedly “long-game” tactics—measures which, over time, are meant to gradually alter the shape and face of our government from within. Structural changes and constitutional amendments are steps in the direction of a more representative democracy, one that relies less on the whims of individuals and ensures that future Americans will not be forced to reckon with endless stagnancy and uncertainty.


Senator Seward compelled his abolitionist followers to vote for structural change in 1855, and the country is undeniably better for those changes. Today we must take it upon ourselves once again to bequeath to our descendants a better, fairer nation than the one into which we were born.


1. Karp, Matt (2019). “The Mass Politics of Antislavery.” Catalyst Journal Vol. 3, No. 2. https://catalyst-journal.com/vol3/no2/the-mass-politics-of-antislavery#po-fn.
2. Wike, Richard et al. (2021). “Many in U.S., Western Europe Say Their Political System Needs Major Reform.” Pew Research Center, 2021. https://www.pewresearch.org/global/2021/03/31/many-in-us-western-europe-say-their-political-system-needs-major-reform/.
3. Gilbert, Michael D. (June 2017). “Entrenchment, Incrementalism, and Constitutional Collapse.” Virginia Law Review Vol. 103, No. 4. https://www.jstor.org/stable/26400253
4. Heymann, Jody et al. (2020). “Advancing Equality: How Constitutional Rights Can Make a Difference Worldwide.” University of California Press. https://doi.org/10.1525/luminos.81.
5. Supreme Court of the United States. “The Court and Constitutional Interpretation.” Accessed 1 June 2021. https://www.supremecourt.gov/about/constitutional.aspx.
6. Library of Congress. “18th Amendment to the U.S. Constitution (Prohibition).” Accessed 1 June 2021. https://www.loc.gov/rr/program//bib/ourdocs/18thamendment.html.
7. Patel, Ushma. “Scalia favors 'enduring,' not living, Constitution.” Princeton University, 2012. https://www.princeton.edu/news/2012/12/11/scalia-favors-enduring-not-living-constitution
8. Liptak, Adam (April 2021). “Supreme Court Rejects Limits on Life Terms for Youths.” The New York Times. https://www.nytimes.com/2021/04/22/us/supreme-court-life-terms-youths.html.
9. Juvenile Law Center. “Juvenile Life Without Parole (JLWOP).” Accessed 25 April 2021. https://jlc.org/issues/juvenile-life-without-parole.
10. Wood, Diane P. (October 2005). “Our 18th Century Constitution in the 21st Century World.” New York University Law Review Vol. 80, No. 4. https://chicagounbound.uchicago.edu/journal_articles/2046/.
11. Constitutional Rights Foundation. “Who voted in early America?” Accessed 25 April 2021. https://www.crf-usa.org/bill-of-rights-in-action/bria-8-1-b-who-voted-in-early-america
12. Kahn, Chris (April 2021). “Most Americans want to end lifetime Supreme Court appointments.” Reuters. https://www.reuters.com/business/legal/most-americans-want-end-lifetime-supreme-court-appointments-2021-04-18/.
13. Supreme Court of the United States. Obergefell v. Hodges (decided June 2015). https://www.oyez.org/cases/2014/14-556.
14. McCarthy, Justin (May 2015). “Record-High 60% of Americans Support Same-Sex Marriage.” https://news.gallup.com/poll/183272/record-high-americans-support-sex-marriage.aspx.
15. Yglesias, Matt (February 2016). “No other democracy gives life tenure to judges on its version of the Supreme Court.” https://www.vox.com/2016/2/16/11024096/life-tenure-judges.
16. https://constitutioncenter.org/interactive-constitution/amendment/amendment-xxii
17. Massoglia, Anna, & Andrew Perez (17 May 2019). “Secretive conservative legal group funded by $17 million mystery donor before Kavanaugh fight.” OpenSecrets, https://www.opensecrets.org/news/2019/05/dark-money-group-funded-by-17million-mystery-donor-before-kavanaugh/.
18. Guilford, Gwynn (July 2018). “117 years of data show why Supreme Court nominees have more influence than ever.” Quartz, https://qz.com/1324841/brett-kavanaughs-age-at-53-means-that-he-may-wield-influence-on-the-supreme-court-for-a-very-long-time/.
19. Calabresi, Steven G. & James Lindgren (April 2005). “Term Limits for the Supreme Court: Life Tenure Reconsidered.” http://epstein.wustl.edu/research/courses.judpol.Calabresi.pdf.
20. Stolzenberg, Ross M., & James Lindgren (May 2010). “Retirement and Death in Office of U.S. Supreme Court Justices.” Demography, https://dx.doi.org/10.1353%2Fdem.0.0100.
21. Fix the Court (2020). “Term Limits.” https://fixthecourt.com/fix/term-limits/
22. The National Constitution Center. “Article III - Judicial Branch.” Accessed 9 May 2021. https://constitutioncenter.org/interactive-constitution/article/article-iii.