President Biden is poised to make a new nomination to the US Supreme Court, prompting fresh discussion about the role and suitability of the court in hyperpartisan era.
The new candidate will replace Justice Stephen Breyer, who announced his retirement in January this year after facing pressure to retire whilst the White House and Senate are Democrat-controlled.
The 83-year-old’s liberal credentials mean Biden’s nominee – who he promises will be the first black woman on the court – will not shift the court’s existing 6-3 conservative majority.
This ‘strategic’ retirement by Breyer, keen to ensure his replacement was not chosen by a Republican president, has refreshed calls for a popular reform: term limits for Supreme Court justices.
Justices are currently appointed for life, with the rationale that this will shield them from the political pressures of the outside world.
However, life tenure today looks very different to when the constitution was written in the 1780s – life expectancy now is more than double what it was then.
This shift, combined with the toxic partisanship infiltrating the nomination process, creates a compelling case for term limits.
Tyler Cooper is a senior researcher at Fix the Court, a non-partisan organisation which works with Congress, lawyers and academics to campaign for Supreme Court reform.
He recognised that individual justices are not to blame for the current trend of strategic retirement.
“If you’re there for as long as these people are, of course you want someone to continue your life’s work,” he said.
“It’s not their fault, it’s just what the system is.”
Despite that, this system gives incumbent justices significant power to impact the make-up of the court after their tenure.
Cooper remarked: “It’s not their seat to bequeath to the next person, it’s a seat that should belong to the people.”
Term limits, he argued, could help to fix this. Fix the Court advocates for 18-year non-renewable term limits for new justices, with new appointments every two years.
This would bring a valuable predictability to the cycle of nominations – under the current system, presidents only make a nomination if justices retire or pass away.
This creates a system where, for example, Obama made only two nominations over his eight-year presidency, whilst Trump secured three justices in one term. Jimmy Carter made no nominations – Nixon filled four seats over five years.
Under Cooper’s proposal, presidents would be guaranteed an appointment every two years, and that justice would be limited in how long they served. This could also limit incentives for presidents to nominate ever-younger justices, in the hope that their philosophy can influence the court for decades to come.
Importantly for Cooper, this is not a reform which would favour one political party over another: “It’s an institutional fix, it isn’t just getting at a partisan alignment.”
Such proposals are gathering momentum – in April 2021, Biden formed the Presidential Commission on the Supreme Court of the United States, a bipartisan group of experts tasked with analysing the arguments for court reform.
The Commission published their report in December last year – whilst it was never intended to make recommendations, the arguments it contains make a compelling case for term limits.
Supreme Court justices today hold their seat for an average of 28 years – the partisan controversy surrounding nominations is almost inevitable, then, given the decades-long philosophical impact a single nomination now has. Not knowing when the next nomination might come heightens incentives for presidents to make as much impact as possible.
Lowering the stakes of each individual appointment, and the institutional power of each individual judge, would be a powerful consequence of introducing term limits.
This is particularly relevant as the Court continues to rule on crucial issues at the heart of US life – the list of current pending cases include questions of abortion, asylum policy, indigeneous rights and freedom of expression.
Opposition to reform
Opponents argue that term limits would tie Supreme Court nominations too closely to political presidential campaigns – with two court nominations guaranteed, they would undoubtedly become a focal point of campaigns and elections.
This, the argument goes, would detract from the philosophy of the court as objective and removed from party politics.
Cooper points out, rightly, that the battle has already been lost.
“Trump specifically had a list of individuals that he campaigned on, and it was a large part of his campaign.
“Biden too, said he would nominate the first black woman and he campaigned on that.”
However, Cooper also does not necessarily think that politicisation of court nominations is a bad thing: “There should be some tie to democracy with these appointments. I don’t think there’s any problem with that being a discussion.”
He does not deny that term limits would make (or keep) appointments overtly political – but argues that this would have the positive effect of keeping the court accountable to changing political opinion.
This is very different to a British view of a judiciary – unelected experts, removed entirely from politics. That said, given that the US Supreme Court is already so closely tied to presidential campaigning, it is unlikely that there is a strong argument against term limits here.
A different argument refers to resulting ‘instability’ – the make-up of the court would shift much more than it does today. A two-term president would find themselves having nominated four of the nine justices on the bench by the end of their tenure.
However, Cooper rejects the idea that this is a negative consequence: “If there was more regular turnover on the court, the justices themselves would be more interested in crafting narrow opinions.
“They would have the understanding that this might resonate with a majority today, but this majority today will not necessarily exist tomorrow. I think there would be more of a mind to keep rulings more narrowly focused – as opposed to today, where most justices know that they will be on the court for a decade at least, and the strong conservative bloc will exist to hold down any opinion.”
This view of the court is closely tied to a vision where individual justices are less powerful.
Could it happen?
There is political appetite for this reform – Rep. Ro Khanna has introduced the Supreme Court Term Limits Act in Congress, proposing a model in line with Fix the Court’s recommendation.
Good news for proponents is that the introduction of term limits would not require a constitutional amendment – a huge hurdle in a gridlocked Congress.
In fact, all the Constitution has to say on the tenure of justices is that justices “shall hold their Office during good behaviour”.
Whilst this has historically been interpreted to mean life tenure, nothing in the Constitution suggests this must be the case.
Regarding how likely Cooper thinks it is that this legislation will be successful, he said: “We’re not at a point where we’re looking to get this to a vote, we’re still just having conversations.”
“It’s not something that’s imminent, but as both parties start thinking more about the SC and the SC starts weighing in on more and more controversial decisions in every aspect of our lives, we think it will start to gain momentum.”
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