by Jonah Levine
What You Can Do
- Call your senators and representatives to advocate for a bill on term limits.
- Stay up to date on the controversies of the court: https://www.scotusblog.com/.
At our nation’s inception, many worried over the feebleness of the judiciary. Alexander Hamilton famously remarked that the courts have “no influence over either the sword or the purse” . Accordingly, he insisted that justices hold lifetime appointments, hoping that they would at the very least be insulated from the political pressures of other branches. Hamilton had his way, and life tenure for federal judges was enshrined in Article III Section I of the Constitution.
In its 232nd year, Hamilton’s early concerns for the judiciary no longer hold true. Wielding the expansive power of judicial review, the Supreme Court has imprinted its views on the military’s sword, the economy’s purse, and countless other facets of American life. Despite the framers’ best intentions, the partisan politics of the executive and legislative branches have infiltrated the Court. Though justices pose as impartial arbiters of the law, the Court’s most polarizing cases often fall along ideological lines. Many Americans have grown suspicious of this deepened factionalism. A September 2021 poll by Gallup found only 40% of Americans approve of the Supreme Court’s performance; this marks the lowest rating since Gallup started its poll in 2000 .
If the Supreme Court is to repair its image, it must be made more responsive to the polity. One clear method of doing so is to establish term limits for justices. Life tenure has made appointing justices a precarious process. Some presidents are politically fortunate enough to experience multiple appointments within their administrations, while others are eluded by such an opportunity. This design encourages justices in declining health to stay on the bench until the election of an ideologically like-minded president, whereas elderly justices in good health are pressured into retiring before a president of opposing values is elected. Such were the plights of Ruth Bader Ginsberg and Stephen Breyer, respectively. The appointment process became increasingly tenuous in 2016 when Senate Republicans blocked President Obama from filling a vacancy during his term.
The fervor surrounding vacancies is understandable; court appointments have the potential to affect the course of jurisprudence for decades to come. The average tenure of a Supreme Court justice, 28 years, is longer than it has been at any other point in American history . The Presidential Commission on the Supreme Court, a body tasked with researching Court reform, recently reported on the advantages of an 18-year term limit, suggesting that vacancies could be staggered in two-year increments.  Thus, each president would have the equal opportunity to appoint a justice every two years. With such reform, citizens would be assured that even if the Court is politicized, it would be properly responsive to the political will of the public.
The one roadblock awaiting advocates of term limits is the process by which such legislation will be passed. The constitution dictates that judges shall hold their offices in good behavior; though not explicitly stated, this wording has commonly been interpreted to describe life tenure.  Therefore, if Congress wanted to pass a regular bill on term limits, they would have to argue that they are not in conflict with the Constitution. Ironically, this controversy might likely be hashed out at the Supreme Court. Congress could alternatively override constitutional concerns by passing an amendment, yet the requisite two-thirds approval of Congress seems unlikely in our current political climate. The path towards court reform is stiff but possible, and should be embraced as a critical step towards a more perfect democracy.