term limits; second, the possibility that the adoption of term limits through statute would invite further intervention in the judiciary by Congress.
I. The Justifications for Term Limits
U.S. Supreme Court Justices have always had life tenure. But as proponents of term limits point out, life tenure is virtually unique to the U.S. federal judiciary. Defined terms for high court justices are commonplace at the state level. Since the Founding, states have decidedly moved away from life tenure for justices of their highest courts. Thirty-one states and the District of Columbia have some form of mandatory retirement,[6] with the majority of states setting the retirement age at 70.[7] Almost all states also establish terms for high court justices, ranging from six to fifteen years. Though these terms are renewable through elections in many states and reappointment in others, mandatory retirement applies in the majority of such systems. Rhode Island is the only state that currently has neither term limits nor a mandatory retirement age for its supreme court justices.[8]
The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court Justices.[9] Among the world’s democracies, at least 27 have term limits for their constitutional courts. And those that do not have term limits, such as the Supreme Court of the United Kingdom, typically impose age limits.[10] In light of this contrast, one scholar who testified before the Commission opined that, “were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure. No other country has true lifetime tenure for its justices, and for good reason.”[11]
In the view of proponents of term limits, the existing system lacks adequate justification beyond the fact that it has always been in place. Currently, the number of appointments available to a President can vary greatly because of random chance; when a vacancy arises depends on when Justices leave the bench due to illness or death, or when they themselves choose to retire. As elaborated in more detail below, some Presidents are able to make three (or more) appointments in a term while others make none. These differences in opportunities, term limits proponents argue, serve no obvious structural purpose.
Proponents of term limits argue that regularizing the appointments process would address these arbitrary consequences of life tenure by making judicial appointments more predictable and the composition of the U.S. Supreme Court more rationally related to the outcome of
