Why Term Limits for Supreme Court Justices Make Sense

Diane P. Wood is a law professor and served as a federal appeals court judge.

When President Biden announced in April 2021 that he was forming the Presidential Commission on the Supreme Court of the United States, it was not clear what the commission could do as a practical matter. The primary complaints about the Court — the fraught confirmation process for justices, the lack of an ethics code with teeth, the extraordinary length of time in office that modern justices typically serve, and the Court’s seeming insulation from any effective form of check or balance — seemed beyond cure, at least without a constitutional amendment. And despite the distinction of the commission’s leadership and members, its December 2021 final report seemed to vindicate those concerns.

But that reaction may have been too quick. On the understanding that its job was not to provide concrete recommendations, the commission stressed that it was not urging any particular reform. Instead, it aimed only to give a full description of the history of Court reform efforts and the pros and cons of a number of suggestions that have been floated in recent years. The report succeeded admirably in that more modest goal.

The time has come, however, to take the debate one step further. Prominent among the reform possibilities that the commission considered was what it called “term limits,” although that moniker is misleading. More accurately, what the commission outlined — and what a working group of the American Academy of Arts and Sciences (of which I was a member) further elaborated in a 2023 report titled The Case for Supreme Court Term Limits — is a proposal that hinges on case assignments.

In brief, the working group’s term limits proposal contemplates a regime under which justices would continue to have life tenure and salary protection, but they would participate in the apex appellate work of the Supreme Court for only 18 years. After that, they would continue to serve as senior Article III justices (assuming they wish to do so rather than simply retire), but they would be assigned to the lower federal courts. They would also be available to perform any other work that the active justices give them.

Two slots on the Court would open up during each four-year presidential term — a system that evens out presidential opportunities to appoint justices. Under the current system, some presidents have been able to appoint numerous justices (four, in Richard Nixon’s case), while others have had no appointments (like Jimmy Carter). The assurance that a given Supreme Court seat will turn over every 18 years should lower the political temperature for the confirmation process, assure better democratic accountability in this vital branch of government, and provide a better stream of new ideas and energy for the Court. At the same time, instead of creating an incentive to place the youngest credible candidate on the Court in hopes that they will implement the appointing president’s favored policies for decades, the term limits idea caps the expected length of service and encourages the appointment of people of experience and proven quality.

In the remainder of this piece, I discuss briefly why the academy working group selected 18 years for the term of service in the apex capacity, how its proposal might be implemented, what objections have been raised against this approach, and why the report’s authors did not find those challenges persuasive.

Article III, section 1, of the Constitution has this to say about the duration of an individual justice’s service on the Court: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour …” The next sentence assures that all federal judges are entitled to compensation, which cannot be “diminished during their Continuance in Office.” Our focus is on the first of these protections — the guarantee of a judgeship absent impeachable behavior.

We start from the fact that the duration of a judge’s “good Behaviour” has grown significantly over the last two-plus centuries, thanks to both improvements in health care and the growing tendency of presidents to appoint younger candidates to the Court. In 1790, a 25-year-old white male could expect to live another 38 years, until age 63; today, the same 25-year-old can expect to live until age 75 — another half century. The average length of service for justices reflects this change. Historically, the median length of service for justices has been 18.5 years. But the picture looks quite different for those appointed after 1990. Those justices have served an average of 26.3 years. William O. Douglas, the longest-serving justice, held his office for a whopping 36 years, 7 months, and 8 days, before health problems compelled him to retire.

Look carefully at that historical median: 18 years, roughly. It embodies an elegance if one’s goal is to preserve the size of the Supreme Court at the current nine. The working group’s proposal envisions that each justice on the Court will sit to hear apex court cases for a fixed term of 18 years, during which time the justice will be designated as an active member of the Court. After the expiration of the 18-year term, that justice will maintain Article III status but will become a senior justice. In that capacity, just as senior judges on the lower courts do today, senior justices will have the choice to work as much or as little as they please. If they wish, they may ride circuit just as Supreme Court justices did during the first century of the Court’s existence. They also may perform other tasks that the active justices assign to them — perhaps dealing with motions or petitions for writs of certiorari, perhaps filling in when the active justices lack a quorum, or performing other jobs designated by the nine active justices.

Even if term limits make sense and would indeed enhance representative democracy, the question remains whether they are constitutional. Absolutely. The Constitution grants Congress extensive powers over how the Supreme Court handles appeals, which comprise the vast majority of its caseload. Article III, section 2 specifically provides that the Court performs its appellate function “with such Exceptions, and under such Regulations as the Congress shall make.” That authority, enhanced by Congress’s “necessary and proper” powers under Article I, section 8, clause 18, is all that is required for Congress to limit a justice’s automatic participation in appellate cases to 18 years.

The most one can say about other potentially relevant parts of the Constitution is that they say nothing useful. For the tiny number of cases in which the Court exercises original jurisdiction, such as disputes between the states, the full Court — that is, all active and senior justices — could easily participate if it is found to be constitutionally necessary. (A 2012 study estimates that the Court only hears one or two original cases each term.)

One objection that has been raised against the term limits proposal contends that the mandatory shift from active justice to senior justice would somehow strip the latter of their Article III status. The Supreme Court, however, has considered and rejected this argument. In Booth v. United States (1934), the Court determined that a district or circuit judge who has taken senior status “continue[s] in office” for purposes of the Compensation Clause of Article III, section 1. The unanimous Court commented that “a retired judge’s judicial acts would be illegal unless he who performed them held the office of judge.” Senior judges are thus protected by the Compensation Clause exactly as active judges are. They do not relinquish their office, nor does the fact that their duties might be lighter affect the analysis.

Although current practice does not require sitting Supreme Court justices to sit on the lower Article III courts, nothing precludes that either — far from it, as the statutes show. The judicial code provides that justices must be “allotted as circuit justices among the circuits by order of the Supreme Court.” More than that, it expressly provides that “the circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the [pertinent court of appeals].” Furthermore, assignments to lower courts are common for retired justices; the chief justice designates and assigns them “to perform such judicial duties in any circuit, including those of a circuit justice, as [they are] willing to undertake.”

Finally, historians and originalists may find it telling that the original circuit courts were to be staffed by one district judge and two Supreme Court justices sitting on circuit. Congress changed this provision in 1793 to require just one justice per circuit court. The Court, while apparently not in love with circuit riding, accepted the constitutionality of the practice in Stuart v. Laird (1803). Importantly for present purposes, it was a form of required service by Supreme Court justices on the lower courts.

Another objection to the term limits proposal is that it fails to provide for the separate appointment of the chief justice of the United States. That is true: it calls for two justices per four-year presidential term without any separate designation for the chief. But nothing in the Constitution requires any such identified slot. The distinction between the chief and the associate justices is purely statutory, as one sees with a quick look at 28 U.S.C. § 1: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices . . . .” That statute has been amended over the years to change the number of justices; there is no reason why it could not also be amended to change the method of the chief justice’s selection. One could imagine, for instance, that under the 18-year plan, the statute might call for the chief justice to be the most senior of the nine active justices and serve in that capacity only for the last two years of their time as an active justice. Or the active justices (or all the justices) might themselves elect a chief every two years from among the active justices — a system that many state supreme courts use.

With one minor exception, the Constitution has nothing to say about the office of the chief justice. That exception appears in Article I, section 3, where the Constitution spells out the impeachment process: after the House returns articles of impeachment, “the Senate shall have the sole Power to try all Impeachments.” Just after that language, we see that the framers assumed that there would be a chief justice: the same paragraph stipulates that “. . . when the President of the United States is tried, the Chief Justice shall preside.” That clause, however, imposes no limits on how someone is designated as chief. The method of selection is subject to congressional control. Indeed, Congress has done just this for the situation in which there is a vacancy in the office of chief justice, or the sitting chief justice is unable to perform the duties of the office: 28 U.S.C. § 3 provides that in those situations, the duties of the chief go to “the associate justice next in precedence who is able to act.”

Advocates for term limits have proposed several approaches to dealing with the current justices. One possibility is to commence biennial appointments immediately, with each new justice replacing a sitting justice. But this would have a disruptive effect on the Court’s current justices and could be misunderstood as a political move. A second approach is to wait for natural vacancies, applying 18-year terms only to incoming justices. The downside of this “natural attrition” approach lies in the length of time it would take to fully implement. Estimates suggest that it would be half a century before every justice had served in an active capacity for 18 years.

The working group’s proposal takes a middle position: with a modest but temporary increase in the size of the Court, that period could be cut in half. The sample timeline in the report assumes that the term limit law was passed in 2023 (already a bit out of date). The first new active justice would be added that year, expanding the Court to 10. Two years later, it assumes that the Court’s most senior associate justice, Clarence Thomas, retires after serving for 34 years, and that a new active justice is added. The total number thus remains 10. Two years later, the assumption is that the new most senior associate justice, Samuel Alito, retires, and a third active justice is added. Thus it goes, with the Court expanding out to as many as 13 justices (a few more if some of the retirement assumptions prove to be mistaken). As the grandfathered justices leave the Court, it shrinks back to nine members. Nine, of course, works perfectly with a system in which two justices are appointed during each four-year presidential term.

Congress has chosen different sizes for the Court over the course of U.S. history. Here is how it has changed:

• 1789: 6 — The first Judiciary Act establishes the Court with one chief justice and five associates.
• 1807: 7 — Congress adds a sixth associate justice when Kentucky, Ohio, and Tennessee become the Seventh Circuit.
• 1837: 9 — Federal statutes add two more associate justices when Congress divides the country into nine circuits.
• 1863: 10 — The Tenth Circuit Act expands the Court with an additional associate justice.
• 1866: 7 — Congress trims the Court back.
• 1869: 9 — The Circuit Judges Act resets the Court to nine — one chief justice and eight associates.

Only once since 1869 has there been any prospect of expansion, and that was when President Franklin Roosevelt floated his court-packing plan. That failed spectacularly, however, given its overtly political structure and motivation. The current proposal, in contrast, has no particular political valence and assures that the Court will eventually stabilize at the size supported by a long tradition.

The Confirmation Process

There has been a lively (though largely speculative) debate over whether the confirmation process would be more or less partisan under the term limit proposal than it has been for the last several decades. Every two years, there would be a new appointee to vet and a new set of Senate hearings; some fear that the temperature would never go down. It is true that having several nominations over a relatively short period, without the other changes associated with the term limits proposal, has not de-politicized the process. President Donald Trump, for instance, wound up with three slots to fill, and it would be hard to imagine a process more steeped in politics than the one faced by present Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, and the inference that their ages (49, 53, and 48 at nomination, respectively) played a part in their selection is difficult to resist. But the term limits proposal’s regularity of appointments — coupled with the knowledge that any appointment’s duration is a fixed 18 years of active service, not potential decades— significantly changes the picture.

Eighteen years, recall, is the historical median for justices. It is plenty long enough for a person to learn the ins and outs of the institution and to have an impact. By setting an outer limit — a practice that is consistent with almost every state supreme court and the highest courts of practically every other country in the world, whether in the form of a term limit or a mandatory retirement age — we will also assure that new thinking, new understanding of our society, and fresh energy will enrich the Court’s determinations.

Filling Vacancies

Critics of the term limit plan have pointed to two vulnerabilities in its structure. The first focuses on the potential for Senate stonewalling. The plan has little to say about the Senate’s role, largely because there is little to be said. There have been a few glaring examples of the Senate refusing to take action on a Supreme Court nominee, but the fact is that even in eras of divided government (i.e., the White House being held by one party and the Senate being controlled by the other), the Senate normally performs its constitutional function.

Although it would be possible to urge the Senate itself to craft special rules for Supreme Court nominees, or for that matter all judicial nominees, that is the most one could do. Recall that under Article I, section 5, clause 2, each House of Congress “may determine the Rules of its Proceedings.” One of the Senate’s constitutional responsibilities, found in Article II, section 2, clause 2, is to provide its “Advice and Consent” on the appointment of “Judges of the supreme Court.” With that constitutional backdrop, it would be an uphill battle to craft legislation that overrode the Senate’s prerogative to set its own rules for its executive calendar, where judicial nominations are lodged.

The other question relating to vacancies concerns events that occur during a particular justice’s 18-year term. Suppose, for example, that Justice X is appointed for an 18-year term, but 10 years into that term is tragically killed in an automobile accident. Rather than have a replacement justice appointed for a full 18-year term — a practice that would be incompatible with the overall cycle of appointment — the academy’s report proposes that the incumbent president have the authority to nominate a person to complete the balance of Justice X’s term (eight years, in this example).

Another possibility would be to fill the empty slot with a senior justice. The report did not recommend this approach, however, because it would defeat the purpose of regular turnover. Some have speculated that the best people would not be willing to serve on the Court for a potentially very short time — even a year or two — but this seems exceedingly unlikely: it is a singular honor to serve on any federal court, let alone the Supreme Court. It thus seems safe to predict that it would not be hard to find highly qualified people who are willing to be considered.

Strategic Behavior by Justices

The last objection that deserves serious attention is the risk that justices would be influenced, subtly or otherwise, by the prospect of life after active service on the Court. Some believe that they might “audition” for a future lucrative job at a private law firm or corporation. A justice appointed at age 50 would be required to take senior status at age 68, which for many people is still young enough for a third act. Of course, if the shorter term length encourages presidents to appoint more experienced lawyers — say, someone who is 60 years old upon joining the Court — this concern diminishes considerably. That justice would leave active capacity at age 78, well past the age when most law firms require their partners to lessen their load, and at a time when a person might just prefer the life of a senior justice over a high-pressure corporate or law firm environment.

Add to these practical considerations the fact that the experiences of state supreme courts and other countries’ apex courts do not indicate that this type of strategic behavior has been a problem, and it seems safe to reject it as a reason not to move forward with term limits. Many retired justices and judges move on to serve on public commissions, at law schools, or in other public service capacities; others are happy simply to retire after a rewarding career. Some transfer their skills to arbitration and mediation. The only thing that would facilitate the latter move is distinguished service on the bench, about which no one can complain.

In the end, the most significant criticism of the term limits proposal is that it comes too close to the constitutional line. Yes, people say, judges regularly move from active to senior status today, and they remain Article III judges, but they do so voluntarily, not under any compulsion. But if they are Article III judges throughout, and their salary is unaffected, it is hard to see why the involuntary nature of the shift from active justice to senior justice makes a constitutional difference. Today’s Supreme Court is not the institution the Constitution’s framers thought that they were creating. It risks turning into a place that is out of touch with the outside world, as more and more justices serve 20, 30, or even 40 years. It is a commonplace observation to note that the world is changing at breakneck speed. To the extent that it leaves the justices in the dust — people with little or no personal experience with electronically stored information, with the internet revolution, and with advances in medicine — we have a problem. Now there is artificial intelligence to deal with, with its endless legal complications. Turnover in these circumstances is a good thing. The term limits proposal offers a better balance between stability and growth than the status quo, and its benefits will only increase over time. The time has come to try it.

Diane P. Wood is director of the American Law Institute and a senior lecturer at the University of Chicago Law School. She served as chief judge of the U.S. Court of Appeals for the Seventh Circuit. The views expressed in this post are entirely personal and do not necessarily reflect the position of the Brennan Center or any institution with which she is affiliated.