This was originally published by Newsweek.
Last week President Joe Biden endorsed major reforms to the Supreme Court of the United States. He backed a binding ethics code and endorsed an 18-year term limit for justices. These are good ideas, and widely supported by the public. Are they feasible? And are they constitutional?
Here’s the bottom line: as part of its system of checks and balances, the Constitution gives Congress significant power to regulate the structure and jurisdiction of the Supreme Court so long as the justices keep their jobs, salaries, and independence. Done right, term limits and an ethics code are constitutional. And they are urgently needed.
The Supreme Court faces a confidence crisis of its own making. It is mired in controversies, such as the millions of dollars in undisclosed gifts to Justice Clarence Thomas and the insurrectionist flags that flew over two of Justice Samuel Alito's homes. The court’s rulings have provoked fierce backlash. Public trust has plunged to the lowest level ever recorded.
The problem is not merely that the court has been corrupted; it’s that our constitutional balance is off. Alexander Hamilton famously dubbed the Supreme Court “the least dangerous branch” because it had so little power to affect public policy. But today’s court has increased its power well beyond what our constitution’s framers could have contemplated. It has inserted itself into almost every public policy issue, undermining the work of the other branches, upending huge swaths of law, and tossing out longstanding rights. Its members serve on average a decade longer than the justices of our nation’s first 180 years. And they do so with fewer constraints. No one should hold that much public power for that long.
In the face of this, Congress has the power to act. Certainly term limits could be accomplished by a constitutional amendment. They can be achieved by statute as well. Congress can structure the Court as it sees fit so long as it does not conflict with the Constitution. Article III establishes the Supreme Court, but it leaves to Congress to determine the details of how the court is structured and what it does. For example, it is well established that Congress can change the number of seats on the court or direct the justices to hear cases in lower federal courts. Under this broad authority, Congress can make the kinds of changes necessary to establish an ethics code and term limits. It is clear that Congress has the authority to provide that the president can appoint a new justice every two years, and Congress also has the authority to alter the duties of the justices so that they move out of active service after 18 years.
Article III also gives Congress the authority to make “exceptions and regulations” to the Supreme Court’s appellate power, meaning it can require the Court to hear certain cases or prevent it from hearing certain kinds of appeals. Congress could also use this power to establish functional term limits. Congress could declare that only justices with fewer than 18 years of service on the bench can hear appellate cases, with senior justices continuing to hear other cases—the handful of cases a year that the Court must hear as specified by the Constitution on matters like disputes between states.
Congress established “senior status” for judges in 1919, and it has been repeatedly upheld as constitutional. Here, justices would retain life tenure, but their tenure would be divided into two distinct periods: a phase of active service lasting 18 years and a senior phase lasting for the remainder of a justice’s life term. The Supreme Court held nearly a century ago that “Congress may lighten judicial duties, though it is without power to abolish the office or to diminish the compensation appertaining to it.”
Indeed, retired justices including David Souter and the late Sandra Day O’Connor have stayed on as senior judges on the lower federal courts. If Souter and O’Connor no longer held office, how could they have been deciding cases?
Some critics argue that a statute providing that justices no longer hear cases on the active docket would violate a different clause of the constitution, the Appointments clause, that limits Congress’s ability to make changes to the duties of a particular official’s position while they are serving. So, they say, if Congress told Supreme Court justices they can no longer hear Supreme Court cases after a certain time window, that would be improper. But as it stands, lower court judges in senior status can continue to keep their jobs and pay even if they do not hear any cases at all, as long as they are doing sufficient other work. And there is certainly no barrier to starting regular appointment of new justices right away and ensuring the jobs of those new justices follow the term-limited plan. Congress can make a number of design choices in the specifics of the plan—such as how to transition, what duties to specify for the senior justices, and so on—within the broad model of an 18-year term of active service. These choices can respond to different views of what the Constitution requires.
Congress also has the power to legislate an ethics code. It has done so for other judges, and has passed laws governing everything from financial disclosures to the oath justices swear. Samuel Alito has insisted, “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.” But as Justice Elena Kagan found it necessary to reply, “It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial.”
The Constitution aims to preserve the court’s independence, both from political pressure and from attempts to corrupt it. Enforceable ethics rules would obviously help. A term limit that applies uniformly would also protect the court’s independence, and in fact would help remove the court from the political controversy mud in which it is now stuck. That’s why every state supreme court except for one has a term limit or a mandatory retirement age. And the constitutional courts of other democracies do, too.
No doubt the imposition of term limits on Supreme Court justices would be a major change in the court’s structure. No doubt, there is little “history and tradition” for term limits, as the current originalist justices would put it. But the behavior of the current court is also unprecedented. In its arrogation of power and its insulation from the American people, it is the current court that is fundamentally out of step. Term limits—along with real ethics rules — would go a long way toward putting the Supreme Court back on the path to regaining the trust of the American people by being worthy of that trust.
