By Paul M. Collins, Jr., and Artemus Ward
A vacancy sign hangs above the Supreme Court bench following reports on Jan. 26, 2022, that long-serving liberal justice Stephen Breyer is set to retire.
Names are already being thrown around in the media as to who will replace him, aided by helpful hints from President Joe Biden himself. But whoever it is can, depending on their age, expect a lengthy spell on the bench of the highest court in the land.
Precedent shows us that justices tend grow old in the position. Breyer is one such example. When he joined the Supreme Court in 1994, he was an already very accomplished 55-year-old former law professor and appeals court judge. Now, at age 83, he is set to retire from the court at the end of the current term in June.
Supreme Court justices in the U.S. enjoy life tenure. Under Article 3 of the Constitution, justices cannot be forced out of office against their will, barring impeachment. This provision, which followed the precedent of Great Britain, is meant to ensure judicial independence, allowing judges to render decisions based on their best understandings of the law – free from political, social and electoral influences.
Our extensive research on the Supreme Court shows life tenure, while well-intended, has had unforeseen consequences. It skews how the confirmation process and judicial decision-making work, and causes justices who want to retire to behave like political operatives.
Problems with lifetime tenure
Life tenure has motivated presidents to pick younger and younger justices.
In the post-World War II era, presidents generally forgo appointing jurists in their 60s, who would bring a great deal of experience, and instead nominate judges in their 40s or 50s, who could serve on the court for many decades.
And they do. Justice Clarence Thomas was appointed by President George H.W. Bush at age 43 in 1991 and famously said he would serve for 43 years. There’s another 12 years until his promise is met.
The court’s newest member, Donald Trump’s nominee Amy Coney Barrett, was 48 when she took her seat in late 2020 after the death of 87-year-old Justice Ruth Bader Ginsburg.
Ginsburg, a Clinton appointee who joined the court at age 60 in 1993, refused to retire. When liberals pressed her to step down during the presidency of Democrat Barack Obama to ensure a like-minded replacement, she protested: “So tell me who the president could have nominated this spring that you would rather see on the court than me?”
Partisanship problems
Justices change during their decades on the bench, research shows.
Justices who at the time of their confirmation espoused views that reflected the general public, the Senate and the president who appointed them tend to move away from those preferences over time. They become more ideological, focused on putting their own policy preferences into law. For example, Ginsburg grew more liberal over time, while Thomas has become more conservative.
Other Americans’ political preferences tend to be stable throughout their lives.
The consequence is that Supreme Court justices may no longer reflect the America they preside over. This can be problematic. If the court were to routinely stray too far from the public’s values, the public could reject its dictates. The Supreme Court relies on public confidence to maintain its legitimacy.
Life tenure has also turned staffing the Supreme Court into an increasingly partisan process, politicizing one of the nation’s most powerful institutions.
In the 1980s and 1990s, Supreme Court nominees could generally expect large, bipartisan support in the Senate. Today, judicial confirmation votes are almost strictly down party lines. Public support for judicial nominees also shows large differences between Democrats and Republicans.
Life tenure can turn supposedly independent judges into political players who attempt to time their departures to secure their preferred successors, as Justice Anthony Kennedy did in 2018. Trump appointed Brett Kavanaugh, one of Kennedy’s former clerks, to replace him. A similar turn of events may occur if President Biden nominates Judge Ketanji Brown Jackson, a former Breyer clerk, to the current vacancy on the court.
The proposed solution
Many Supreme Court experts have coalesced around a solution to these problems: staggered, 18-year terms with a vacancy automatically occurring every two years in nonelection years.
This system would promote judicial legitimacy, they argue, by taking departure decisions out of the justices’ hands. It would help insulate the court from becoming a campaign issue because vacancies would no longer arise during election years. And it would preserve judicial independence by shielding the court from political calls to fundamentally alter the institution.
Partisanship would still tinge the selection and confirmation of judges by the president and Senate, however, and ideological extremists could still reach the Supreme Court. But they would be limited to 18-year terms.
The U.S. Supreme Court is one of the world’s few high courts to have life tenure. Almost all democratic nations have either fixed terms or mandatory retirement ages for their top judges. Foreign courts have encountered few problems with term limits.
Even England – the country on which the U.S. model is based – no longer grants its Supreme Court justices life tenure. They must now retire at 70.
Similarly, although many U.S. states initially granted their supreme court judges life tenure, this changed during the Jacksonian era of the 1810s to 1840s when states sought to increase the accountability of the judicial branch. Today, only supreme court judges in Rhode Island have life tenure. All other states either have mandatory retirement ages or let voters choose when judges leave the bench through judicial elections.
Polling consistently shows a large bipartisan majority of Americans support ending life tenure. This likely reflects eroding public confidence as the court routinely issues decisions down partisan lines on the day’s most controversial issues. Although ideology has long influenced Supreme Court decisions, today’s court is unusual because all the conservative justices are Republicans and all the liberal justices are Democrats.
In December 2021, the Presidential Commission on the Supreme Court of the United States released its report on Supreme Court reform, which examined term limits for the justices. Although the commission did not take a position on the merits of term limits, it did outline a variety of means by which they could be imposed, including through the constitutional amendment process and by congressional statute.
Ultimately, Congress, the states and the public they represent will decide whether the country’s centuries-old lifetime tenure system still serves the needs of the American people.
Paul M. Collins, Jr. is Professor of Legal Studies and Political Science at the University of Massachusetts, Amherst. Artemus Ward is
Professor of Political Science at Northern Illinois University.
Note: This is an updated version of an article originally published on July 7, 2021.
Trump/Covid 2020 says
“To end the justices’ life tenure would likely mean a constitutional amendment requiring approval from two-thirds of both houses of Congress and three-fourths of U.S. states.”
I don’t think you could get 2/3rds of both houses and 3/4ths of states to agree that 2+2=4.
Jim says
NOT until there are term limits on the Senate and Congress!!!!
Dennis says
All this talk comes up because the democrats do not like the rulings made by the court. Democrats not only dislike the constitution but the laws that keep America safe, and the Supreme Court decisions. If you disagree with the democrats view, your labeled racist. It used to be Russia, Russia, Russia, when that failed to fruit, now it’s racist, racist racist. The democrats are poor losers snd seem to hate America.
capt says
Not unless our members of Congress have term limits.
Outsider says
Interesting how the left is always wanting to change things when the status quo no longer benefits them. The desire to “reform” the Supreme Court is yet another example of their multiple attempts at seizing power. From importing Democratic voters from countries who have no legal power in the United States to attempting to illegally make D.C. a state so they can have two more liberal senators to ending the “racist” filibuster which they used 800 times since 2001, presumably in Jim Crow style and proposing to “expand” the court to 13 judges which would instantly give Biden four picks is totally corrupt. Their crazy left liberal ideas don’t resonate with the majority of the American populace so they are continuously contriving ways to seize power the citizenry has refused to give them. It’s obvious what they are attempting to do and they are fooling nobody, including Joe Manchin.
James M. Mejuto says
re: Supreme Court: No one, no Justice should by law inherit a lifetime appointment.
There should be term limits, probably 4yrs. max.
James M. Mejuto
Richard says
I would bet the deed to my house that if a national survey was taken as to whether to have the number of term limits for congress versus term limits for the Supreme Court the clear choice would be CONGRESS. The ONLY reason this is even being brought up is that the Democrats want to control this entire country FOREVER and will do ANYTHING to accomplish that objective.
Sherry says
While I agree that the tenure both Member of Congress and the Supreme Court Justices need to be adjusted, we should consider the terrible political ramifications of only 4 year terms on the “consistency” of our governing bodies and judicial systems.
Consider the possibility that Congresspersons could/should be limited to no more than 3 “total” terms in any house of Congress.
Regarding the Supreme Court Justices, I would prefer that they be required to retire, and cannot serve beyond age 65 or 70.
However, changing these tenures would require a change to the constitution, and Members of Congress to actually vote against their own agenda to hold on to power at all costs. Good Luck with reforming a system that is becoming more and more corrupt.
Especially “Republican” power brokers like Senate Minority Leader, Mitch McConnell, would never even consider such reforms.
Robjr says
Yeppers.
Too many have been feeding at the trough for too long!
tulip says
AMEN to that Jim!!!!!
tulip says
4 years is too short a time, 8 years is better.
Ron says
All our senators and representatives should have term limits. Eight years is enough. Let’s end lobbying also! Before you even talk about the Supreme Court.
Ray W. says
Assuming Richard’s comment to be accurate, Republican and Democrat might be interchangeable here. Richard overlooks the obvious. Our founding fathers understood that every political party, and its members, would want to control the entire country forever and do anything to accomplish that objective. This is why our founding fathers inserted checks and balances into the Constitution, so that no one individual would ever possess unlimited power for an indeterminate period of time if he followed the law. In this way, Richard is right and wrong at the same time. This is why Trump was, and is, so dangerous. He seeks unlimited power for an indeterminate period of time and is willing to do and say anything to get it back. He is not gone and we can never forget who and what he is.
Flats says
Talk about poor losers, 8 months after the election, 60 Court cases and all the GOP does is continue to make a mockery of our Constitution and Laws. Dennis, you need to get your head out out of the dark smelly hole where you have chowing down for way too long.
Thomas Cannito says
Why didn’t you mention the ages of the two justices Obama made,curious?
DaleL says
Of the three branches of the Federal government, the Supreme Court is the most respected and least corrupt. This seems like a proposal to “fix” what is not broken. Further, as Trump/Covid 2020 wrote, it is not likely to happen because it would require an Amendment to the US Constitution.
However, presidents could probably be prevented from appointing younger and younger justices without a change in the Constitution. Perhaps a law which sets age 50 as the minimum age for a person to be appointed.
Term limits have not been shown to be a perfect solution. Politicians who are term limited frequently just run for a different office. The one office in which term limits has worked is that of the President. The weakness of our Republic is polarization of the two party system. I personally care very little whether our sheriff, clerk of court or tax collector is a Republican or Democrat. I care only that they do a good job. Their positions are not to make law, but rather to just follow the law.
mark101 says
NO, Not until Congress does.
Keep Flagler Beautiful says
If the Democrats held the majority in the Supreme Court, you can bet this issue would NEVER be raised. All they’ve cried about since Trump’s appointments is that two more justices should be added. Of course. How utterly transparent. Even the term “pack the court” tells you it’s a sleazy effort in which the Democrats would win and the democratic system would lose.
Bartholomew says
Democrats dislike the constitution…? That is really a crazy statement. What is it a requirement that if you are going to be or are a democrat you must HATE the constitution???
Additionally, you have to let Dennis know. I don’t really believe that.
Steve says
The orange stain and Stop the Steal come to mind. Take off the orange-colored glasses, put the kool aid down and join Reality for a while. Don’t you have a staged anti- vax, it’s a hoax, mass hysteria Rally to go to with no mask.
Bartholomew says
Not really? Should I be are you expecting me to guess at this? If there is something to say say it please.
Steve says
8 or 10 then most would be too old to keep the pace. IMO
Steve says
Including an Insurrection type takeover of a fair Election.?? You mean that type of objective. So Hypocritical … LOL
Steve says
Literally Ancient History but nice projection try NOT
Gail Walton says
No for supreme court justices, but YES INDEED for Congress!
A Concerned Observer says
I believe term limits or aging-out of Supreme Court Justices might be a good idea but I would NOT look forward to the political wrangling and unending beating up of candidates by self-serving opposing party politicos. I, for one, can’t understand why anyone would go through that pain and personal vilification that Justice Bork had to endure and all of it on television! However, I strongly believe term limits for congressional representatives and senators is of far greater priority. Some of the longest serving doddering old politicos had to die to be replaced. And while considering these abuses of political power, let’s get rid of the tactic of adding political pork on to essential bills because they could never survive on their own merits. Americans deserve better…
George says
There should be term limits on Congress, Senate and Supreme Court Justices, why should they not have that as the any other position.
They get in these positions for life and think they are God and can’t be touched. And as we are seeing it is very political as you see Democrats and Republicans wanting to get who they want in the drivers seat for life. Not right.
The Supreme Court Justices should not be ruling their laws in our country because of what party they favor, that is unjust.
It sure seems like that is what is happening.
Bill C says
Waaaaa. All the republicans posting herein conveniently forget about how Merritt Garland was shut out for consideration to the Supreme Court because Mitch McConnell refused on the grounds that it was too close to the election which was a year away, then rammed through Amy Corny Barrett within weeks of the election, dishonoring precedent going all the way back to Abraham Lincoln. Brett Kavanaugh was approved 50-48 after debate on his qualification was abruptly ended with a 51 – 49 vote before Democrats could even ask questions. So don’t moan and groan when Biden’s nominee is approved by the same methods.
Bill C says
ps Donald J Gump’s Rose Garden event announcing Amy Coney Barrett to the Supreme Court was a “superspreader event.”
capt says
Mitch along with Nancy Pelosi. These lifers in politics need to retire. 25 and more years is enough.
https://history.house.gov/Exhibitions-and-Publications/WIC/Historical-Data/Women-Who-Have-Served-More-Than-25-Years/
https://history.house.gov/Institution/Seniority/40-Years/
Enough is enough.
Jim says
Rick scott ran on the promise of term limits for the senate…….just another Republican lie.
Who votes for these guys anyways?
A.j says
Term limits I don’t know. It was O.K. for Mitch to block Obama,s nominee, O.K. to push Trump,s nominee through. The Repub voters think that is O.K. You block the Drm. nominee, and vote the Repub. nominee. For the Dems to nominate a Black Woman, the white male Repubs. are upset, one saying a Black Woman, can’t work on the Supreme Court. White men don’t think anybody can do anything but themselves. Block her nomination old white Repubs, loose your seats in Nov. As long as they work for the people stay until you die.