Presidential Commission on the Supreme Court of the United States
3. New Term-Limited Justices Are Appointed Only When Currently Sitting Justices Vacate Their Seats
Another alternative proposed in academic work on this issue is that current Justices continue to serve for life and new appointments are made only when the seat of a currently sitting Justice becomes vacant.[50] The amendment would still establish a schedule of regular eighteen-year appointments, into which retirements of currently sitting Justices would then have to be integrated. For example, if a currently sitting Justice retires before the date for vacating that seat occurs, the President nominates a Justice who would serve the next eighteen-year slot that is scheduled to become available. Suppose under the amendment the first three eighteen-year terms would arise in 2025, 2027, and 2029. If a currently sitting Justice leaves the bench in 2024, the President would nominate a Justice whose term would be nineteen years (2024–2025 plus the eighteen-year term that begins in 2025). If the next sitting Justice leaves in 2025, the President would nominate a Justice whose term would be twenty years (2025–2027 plus the eighteen-year term that begins in 2027). If another seat does not open up until 2031, the President would nominate a Justice who would serve for only sixteen years (filling the term that was scheduled to begin in 2029 and end in 2047).
This proposal would avoid temporary expansion of the Court, but it would also generate the longest time interval before the full Court was composed of Justices serving eighteen-year terms. One study estimates that, under this proposal, it might take around fifty-two years before the Court reached the point that all Justices were serving eighteen-year terms.[51] The additional complexities just noted about timing of appointments might also be considered a cost of this proposal.
4. Addressing Seats Held by Currently Sitting Justices That Become Vacated Prematurely
If the amendment applies to currently sitting Justices, as in the first option above, a distinct issue arises concerning the seats of those Justices that might become vacant prematurely. For example, a currently sitting Justice whose term would be scheduled to end in 2033 might vacate the seat in 2025. This may be a more likely scenario than that a new Justice appointed to an eighteen-year term would vacate that seat prematurely. Simply for reasons of age, it seems more likely that a Justice on the current Court would leave office eight years before a scheduled end-of-term date than would a newly appointed eighteen-year term Justice.
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