Page:EO 14023 Commission Final Report.pdf/117



Among the proposals for reforming the Supreme Court, non-renewable limited terms—or “term limits”—for Supreme Court Justices have enjoyed considerable, bipartisan support. Advocacy groups, nonprofits, and membership organizations have expressed their support for term limits. In testimony before the Commission, a bipartisan group of experienced Supreme Court practitioners concluded that an eighteen-year non-renewable term “warrants serious consideration.” Major think tanks and their leaders have also endorsed the concept, as have both liberal and conservative constitutional scholars. When the National Constitution Center organized separate groups of “conservative” scholars and “progressive” scholars to draft their own proposals for improving the Constitution, both groups concluded that Supreme Court Justices should be limited to eighteen-year terms. Yet other scholars and commentators have questioned the idea of altering the system of life tenure, which has been in place since the Constitution established the Supreme Court and the judicial power.

This Chapter considers the full range of debate over term limits and addresses numerous design questions that policymakers would need to take into account if they were to develop such a system, including the question of whether implementation would require constitutional amendment or could be achieved by statute. Consistent with its charge, the Commission does not take a position on whether or how term limits ought to be implemented but rather seeks to define and inform the debate over these questions.

Part I presents a series of arguments for term limits, explaining how, in the view of proponents, term limits would enable a regularized system of appointments to the Court that would preserve the value of judicial independence, make it more likely all Justices would serve for roughly equal numbers of years, and ensure that the Court’s membership would be broadly responsive to the outcome of democratic elections over time. Part II then sets out a series of objections to term limits and articulates the harms opponents of the proposal believe it might have on judicial independence and legitimacy. In Part III, we consider the design questions presented by a constitutional amendment that would institute a system of term limits. In Part IV, we consider whether and how such a system would be achievable by statute. Throughout Parts III and IV, we consider questions about the design of a system of limits, such as the length of Supreme Court Justices’ terms, the number of appointments each President should be able to make in four years’ time, and how transitioning to a term-limited system would be accomplished. We conclude in Parts V and VI by addressing some additional concerns: first, the potential impasse in the Senate’s confirmation process that would stymie a new system of