Imposing term limits on the U.S. Supreme Court would be transformational, but far from radical. More than two-thirds of Americans believe the justices should serve for a fixed number of years rather than hold their positions for life. Indeed, the federal high court is a stark outlier when compared to state supreme courts.
Like U.S. Supreme Court justices, state justices sit on apex courts and provide the final word on matters of statutory and constitutional law. They also oversee state judicial systems that decide 95 percent of all cases, representing the overwhelming majority of litigation in the United States.
While the nine U.S. Supreme Court justices enjoy lifetime appointments, 339 out of the 344 state supreme court justices serve a limited term subject to reselection, face a mandatory retirement age, or both. That represents 99 percent of state justices across 49 states, with only the five justices on the Rhode Island Supreme Court serving a life term. Since 1970, state justices have served an average of 13 years, half as long as the average of 26 years on the bench for U.S. Supreme Court justices.
State practices of limited tenure
Limited terms for state supreme court justices date back to the founding era. At the time Alexander Hamilton and colleagues penned the Federalist Papers in the 1780s, for example, New York imposed a mandatory judicial retirement age of 60.
Today, 47 states provide for a fixed term for state supreme court justices, ranging from 6 to 14 years. Justices in these states are then eligible to be considered for additional terms of service through reselection processes that can include contested elections, up-or-down retention elections, or reappointment processes. The most common term lengths for state supreme court justices are 6, 8, or 10 years; the average term is 8 years.
Besides Rhode Island, just two states permit justices to serve indefinitely upon initial appointment — Massachusetts and New Hampshire — but each imposes a mandatory retirement age of 70. (In New Jersey, justices can serve an indefinite term until age of 70 but only if they are reappointed after serving an initial 7-year term.)
With respect to mandatory retirement, 31 states impose age limits for state supreme court justices. Depending on the state, justices may be forced to retire upon reaching a certain age or be barred from seeking another term. Additional states incentivize retirement by rescinding retirement benefits if justices fail to step down from the bench after reaching a certain age.
Among states with a mandatory retirement age, the most common age limit is 70. On the current U.S. Supreme Court, Justices Samuel Alito, Sonia Sotomayor, and Clarence Thomas are over the age of 70. Since 1970, only two U.S. Supreme Court justices retired before reaching the age of 70 — Potter Stewart at 66 and David Souter at 69. The 16 other justices who left the Supreme Court bench during this period did so between ages 75 and 90; the average retirement age for those who stayed past 70 was approximately 82.
Among the 18 states that do not impose age limits, 17 subject justices to fixed terms coupled with a reselection process. Rhode Island is the only state that provides its justices with life tenure, though nothing in the state constitution precludes the state legislature from imposing a mandatory retirement age for justices in the future.
In recent years, voters across the country have had opportunities to pass ballot measures to increase mandatory retirement ages for judges. In the majority of cases, voters have rejected such proposals: since 2012, Arizona, Hawaii, Louisiana, New York, Ohio, Oregon, Texas, and Wyoming all declined to adopt proposed increases to judges’ mandatory retirement ages, reaffirming the common-sense view that no one should hold public power for too long.
Data on length of state tenure
Until 1970, the average length of service for a U.S. Supreme Court justices was about 15 years. Since 1970, however, the average tenure of the justices has ballooned to approximately 26 years. Based on current trends, some sitting United States Supreme Court justices are projected to serve as long as 35 years — nearly nine presidential terms.
By contrast, due to the combined effect of age limits and fixed terms with reselection processes, the average tenure of state supreme court justices is far lower. Since 1970, state justices have served an average of approximately 13 years — half the average tenure of their federal counterparts.
How justices are selected varies considerably across states, but the average tenure of state supreme court justices who have retired over the past half-century is remarkably consistent. Only in Oklahoma has the average term of state justices been greater than 18 years, with that state’s justices serving approximately 22 years — still less than the federal average of 26. And in 35 states, justices’ tenures have been between 11 and 14 years, with 13 years as the most common state average across all states.
Massachusetts and New Hampshire, for example, have somewhat similar selection systems to what’s used for the federal courts. Justices on both high courts are appointed by the governor upon approval by an executive council for a single open-ended term. But because of their mandatory retirement age of 70, since 1970, justices from both states have served for an average of 14 years.
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State limitations on judicial tenure, while varied, are grounded in a deeply rooted principle enshrined in American political culture since George Washington voluntarily stepped down after two presidential terms: no one should hold too much public power for too long.
The limitless tenure of U.S. Supreme Court justices is out of step with state practice and tradition, and it needs to change.
