Lifetime appointments to the U.S. Supreme Court would end, under a proposal unveiled Monday by conservative, progressive, and libertarian constitutional scholars. Supreme Court justices would serve staggered 18-year terms moving forward.
The change to Supreme Court tenure stood out among a set of five proposed constitutional amendments prepared for the National Constitution Center. None of the amendments has been introduced formally, either to Congress or through the states.
“There shall be nine judges of the supreme court, who shall hold their offices for staggered terms of eighteen years, such that every two years there shall be a vacancy,” according to the amendment. “In the event of a vacancy resulting from death, resignation, impeachment, or other inability to perform the duties of the office, a new judge shall be appointed for the duration of the term only. After a term of office has expired, the judge whose term has expired may elect to sit on an inferior court during good behavior, which court is to be determined by the Chief Justice or as Congress shall direct.”
“After this article is ratified, the senior-most judge currently serving on the supreme court, calculated by time served on the court, shall retire by the next presidential inauguration,” the proposed amendment continued. “The President after said inauguration shall nominate a successor. Every two years thereafter for sixteen years, the most senior remaining judge shall retire by January 20, whose successor shall be nominated by the sitting President after that date. In the event of a vacancy resulting from the death, resignation, or impeachment of a judge of the supreme court sitting as of the time this article is adopted, a new judge shall be appointed for the duration of the term that would have otherwise elapsed according to this section.”
If this provision were in place today, Associate Justice Clarence Thomas would be the first justice forced into retirement. He has served on the U.S. Supreme Court since 1991.
Ilan Wurman of Arizona State University’s law school, representing conservatives, labels the proposed amendment a compromise in a “raging battle” over the Supreme Court’s future.
“We fix the number of Supreme Court justices at nine,” Wurman said during an online discussion. “So no possibility of court-packing or changing the number save a future constitutional amendment.”
Staggered 18-year terms ensure two Supreme Court appointments every presidential term, Wurman explained. “We know like clockwork there are going to be two appointments. It reduces the temperature of confirmation battles,” he said.
Confirmations are automatic within three months of a nomination unless the Senate votes against the appointment. “What does this mean? Merrick Garland may not have been approved, but he would have gotten a vote,” Wurman said.
Garland, now the Biden administration’s attorney general, never saw a vote on his nomination to the U.S. Supreme Court during the closing months of Barack Obama’s presidency.
Caroline Fredrickson of Georgetown Law School, representing progressives, supported a larger Supreme Court. She was willing to set that preference aside to secure a compromise containing term limits.
“We also believe that term limits are good government,” she said. “It’s completely anomalous in the world, except for a very few … countries that have life tenure for their highest courts.”
“It just doesn’t make any sense to have somebody be able to be in [that] kind of position — especially with the way judicial review works in the United States and the immense power that the Supreme Court has to determine the direction of our lives for generations.”
Ilya Shapiro of the Manhattan Institute, representing libertarians, cautioned against overselling the amendment as a way to cool down Supreme Court political debates.
“This would make the court even more a part of presidential and Senate campaigns,” Shapiro said. “But it would eliminate arbitrary or politically timed retirements, morbid health watches over octogenarian justices, appointments of 23-year-olds so they can serve for 80 years, and those sorts of things that detract from public confidence in the court as an institution.”
Jon Guze, senior fellow in legal studies at the John Locke Foundation, offered a favorable assessment of the plan. “Of the proposed changes to the way seats on the U.S. Supreme Court are filled, this is one of the most sensible I’ve seen,” Guze told Carolina Journal. “It would go a long way toward cooling the partisan intensity of the nomination and approval process.”
“Unfortunately, it wouldn’t work in North Carolina, where our Supreme Court justices are elected, but it would be awfully nice if something could be done to cool the partisan intensity that has characterized the court in recent years,” Guze added.
The proposed Supreme Court changes are tied to a larger group of revisions, dubbed Amendment XXXI, dealing with federal appointments. The amendment also would change rules regarding Senate confirmation of presidential treaties and appointments.
Other proposed amendments deal with changes to presidential eligibility, a legislative veto of executive actions, impeachments, and the future of the constitutional amendment process. All are tied to the Constitution Drafting Project at the National Constitution Center.
Nine scholars compiled the list of amendments. Each amendment required at least six votes, with at least one vote from each of the three ideological groups.
“Team Conservative” featured Wurman, Robert George of Princeton University, Michael McConnell of Stanford Law School, and Colleen Sheehan of Arizona State University. “Team Libertarian” featured Shapiro, Timothy Sandefur of the Goldwater Institute, and Christina Mulligan of Brooklyn Law School. “Team Progressive” featured Fredrickson and Jamal Greene of Columbia Law School.
Conservative, progressive, and libertarian groups also submitted their own separate groups of constitutional revisions. The National Constitution Center is a private, nonprofit group that bills itself as “America’s leading platform for constitutional education and debate.”