III. Analyzing a Constitutional Amendment for Term Limits
This section identifies the major issues to consider in designing a system of term limits. These issues include the size of the Court, the length of the Justices’ terms, how to fill vacancies that arise before a set term ends, and how to transition from the current system.
Many of these issues arise under either a proposed constitutional amendment creating term limits or a statutory term limit proposal. But the options for addressing them differ depending on which path is being considered. In this Part, we discuss these issues in the context of a constitutional amendment to adopt term limits. In Part IV, we do so in the context of a statutory term limits proposal, and we also discuss whether these reforms would require constitutional amendment or whether they could be enacted by Congress. While our aim is not to recommend a specific proposal, we believe it is necessary to discuss plausible reform options in order to ground our analysis.
A. Setting the Court’s Size and the Appropriate Term Length
A system of term limits ought to specify the appropriate size of the Court. One major justification for a staggered, term-limited system of appointment is that such a system would bring about less randomness and greater equality across presidential terms in the number of Justices a President would have the opportunity to appoint. That aim would be drastically undermined, however, were Congress free to vary the size of the Court. We separately evaluate proposals to expand the size of the Court in Chapter 2 of this Report. For purposes of our analysis here, we assume that an amendment would fix the Court’s size at nine Justices.
With a nine-member Court, the two likeliest options for term limits would be a twelve-year term or an eighteen-year term, as both would create a roughly equal number of appointment opportunities in each presidential term. In recent decades, the overwhelming majority of term limit proposals have endorsed the eighteen-year version. In that version, each President would have two regular appointments in a single presidential term. In the twelve-year version, each President would have three such appointments.
Important tradeoffs are involved in this choice. As we noted at the outset of this Chapter, from the perspective of the state courts and international peers, an eighteen-year term is quite long. Of the forty-seven states that impose term limits for their highest court judges, only one state has a term longer than twelve years.[40] Similarly, of the twenty-seven countries that impose a term limit, those limits range between five and fifteen years.[41] The German
