For the first time ever, a president has endorsed term limits for US Supreme Court justices. Under President Joe Biden’s proposal, each justice would spend 18 years in active service then move on to a different set of duties.
Putting aside the question whether the plan will be enacted, how would a world with term limits look? We can answer this question in two ways: by looking back and looking forward. Each perspective shows us a different side of the issue.
The main impact of term limits is to regularize the appointment process by allowing each president to appoint two justices per four-year presidential term.
Looking back, if the plan had been in place, we would now have two justices appointed by Biden, two by Donald Trump, four by Barack Obama, and one by George W. Bush. Instead of the current 6-3 Republican supermajority, we would have a 6-3 Democratic supermajority.
Would that be an improvement? Democrats certainly think so; Republicans probably do not. But Democrats would have that advantage because a term-limited court would reflect the past 18 years of the presidency: 12 years of Democrats and 6 of Republicans.
There is probably something to be said for tying control of the court to success in national elections. We are now three justices away from where we would have been if each president had an equal impact on the court.
We have been that far away just once before in American history: in 1857, when the court destroyed its legitimacy and pushed the nation toward civil war with the disastrous Dred Scott v. Sanford decision.
But the past is past. Looking ahead, presidents might start appointing older justices, because they would no longer be trying to find someone to serve for 40 years. Justices who are appointed young might leave the court and have significant careers afterwards.
Those are relatively minor changes. Two structural points are more important. First, each president is supposed to have an equal impact on the court, but this isn’t guaranteed. And second, even if the system works as intended, it will take time for term limits to bring the court back in line with presidential elections.
Take the first point first. Each president is supposed to get two appointments per four-year term, but nominees still must be confirmed by the Senate. A Senate controlled by the opposing party might demand an ideologically congenial nominee, or refuse to confirm anyone at all. (If you consider Merrick Garland’s current pace of work as Attorney General, compare it to the 293 days he spent waiting for a Senate hearing.)
I have been part of several groups designing term limits, from Biden’s Supreme Court Commission to the American Academy of Arts and Sciences Working Group. All of us found the possibility of Senate obstruction the most difficult issue to address.
There are some possible solutions to a Senate impasse: we could come up with a way to bypass Senate confirmation, or penalize the obstructionist party, or hope that midterm elections will induce compromise. But there is no system that can overcome a complete absence of bipartisan cooperation. America will not work if political actors treat governing as a conflict where, in Justice Samuel Alito’s words, “one side or the other is going to win.”
As to the second point, many agree that even if term limits can be enacted by statute rather than constitutional amendment (I concur), they cannot be applied to sitting justices.
I am unsure about that as a matter of pure constitutional interpretation, but I do think the Supreme Court is unlikely to uphold a statute that will push sitting justices off before they want to leave. The current nine are there for life, if that’s what they want or are able to manage.
That means two things. First, term limits will increase the size of the court. When the next president takes office and starts making appointments, the court will grow to 10 active justices, and then 11. Second, the current partisan imbalance will take time to undo.
Assuming there are no retirements or deaths among the current justices, Democrats will need eight years of Democratic presidents to appoint the four justices they need to win back a majority.
So even if presidential candidate Kamala Harris wins in 2024 and repeats in 2028—at which point there will have been a Democratic president for 20 of the previous 26 years—only at the end of her second term would the court come back into Democratic hands.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Kermit Roosevelt is professor for administration of justice at University of Pennsylvania’s Penn Carey Law School, and focuses on a range of fields, including constitutional law and conflict of laws.