Presidential Commission on the Supreme Court of the United States
confirmation and selection process while also affecting the culture and standing of the Court. A broader concern they hold is less about term limits than about any reform that weakens one of the Constitution’s two express protections of judicial independence. In our current polarized environment, opponents argue, any change to the structure of the Supreme Court might be regarded with suspicion, and the risks of unintended consequences are significant. Opponents further contend that, if pursued by statute rather than constitutional amendment, such reform might open the door to further structural changes, such as an overreaching President’s attempt in collaboration with Congress to remove life tenure from all Article III judges, with considerable risk to the stability of the judiciary. In short, say opponents of term limits, the current system of life tenure is not broken, and term limit proponents have not met their heavy burden of persuasion.
Term limit proponents acknowledge that the risk of unintended consequences is an important point to consider, but they argue that it is not a conclusive argument for inertia, particularly because the status quo has significant problems. Indeed, they argue, inertia too can have unintended consequences, as illustrated by the gradually lengthening tenure of Justices over time and the increased perception that Justices retire strategically. Responding to the costs and risks asserted by opponents, they note that the average tenure of the Justices who left the Supreme Court from the Founding until 1970 was less than eighteen years.[37] So, proponents argue, the Court has historically experienced greater turnover than a system of eighteen-year terms would be likely to produce now. They argue that concerns over judicial independence or increased executive power are not supported by actual experience in courts that have term limits or mandatory retirement ages, nor are they supported more generally by the empirical literature.[38] Moreover, these concerns can and should be addressed through the careful design of the system, such as through long and non-renewable term limits, a guaranteed lifetime of judicial office and compensation while performing other judicial duties, and the coupling of term limits with some restrictions on the types of post-Court employment. Even some critics of term limits, they note, think it fair to expect that “long fixed terms followed by assignment to a court of appeals” would give individual Justices a degree of independence comparable to the status quo.[39] And they respond to opponents’ concerns about politicization of the appointments process by pointing out that the process is already highly politicized and that an eighteen-year term is long enough to avoid any increase in the heat of confirmation battles.
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