Term Limits Depoliticize the Supreme Court

Opponents of Supreme Court reforms are quick to claim that such changes are unwise because they would politicize the Court. While it’s true that many are motivated to neutralize the extremism currently dominating the bench, the proposed reforms would in fact substantially depoliticize the Court and likely expand the perspectives and experiences of its members. Term limits for the justices are a perfect example.

The potential for Supreme Court vacancies has always been a big “what if?” specter hovering over presidential elections. Maybe a justice is getting older, having some health issues, shopping a book around, or reaching a tenure milestone, and these factors fuel conjecture over how many justices the next president might get to appoint.

The hope that a president would have a bigger influence on the Supreme Court previously motivated Republican voters more than Democratic voters. Republican leaders campaigned on the reality that their political priorities, such as overturning access to abortion, voting rights, and consumer protections, required an unaccountable Court willing to rule in their favor on highly unpopular political issues.

They spent decades carefully shaping the Court, such that there has not been a majority of Democratic-appointed justices since 1969.

But in 2016, then-Senate Majority Leader Mitch McConnell gave up the game. No longer were then-Senate Republicans going to rely on elections and chance; they were going to openly abuse their power to control which president got to fill the vacancy created by the death of Justice Antonin Scalia. Ignoring President Obama’s nomination of Merrick Garland, McConnell held the seat open by refusing to hold hearings for nearly 10 months until President Trump took office and filled it with Neil Gorsuch. Then, at the end of the first Trump administration, McConnell ignored the “no confirmations during an election year” rule he invented in 2016 to rush Amy Coney Barrett to the confirmation finish line mere weeks before the 2020 election.

It’s probably no surprise that it was around this time that there was a major shift in public opinion, and the Supreme Court became a bigger issue for Democratic voters than for Republican voters for the first time in decades. Even the contentious nomination of Brett Kavanaugh in 2018, marked by allegations of sexual assault and his angry hearing, created what many called a “Kavanaugh effect” that boosted Democrats in that year’s midterms. That trend was then further fueled by the Court’s 2022 decision overturning Roe v. Wade’s guarantee of nationwide access to abortions. It became clear that Supreme Court vacancies were not merely a matter of chance and that it was crucial to prioritize the Court — as conservatives had for some time — to protect vital civil liberties, representative democracy, and the rule of law.

But term limits seek to eliminate speculation and opportunities to politically manipulate who sits on the bench. By setting finite schedules for justices’ tenure, term limits create the opportunity to normalize the schedule by which vacancies open — guaranteeing that no president will have more control over vacancies than any other.

The proposals for instituting Supreme Court term limits, such as Rep. Hank Johnson (D-GA)’s Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act, specify not only a term limit of 18 years, but also that each justice’s term would be segmented by two years. This results in every president having the opportunity to appoint exactly two justices — specifically during their first and third years. This would not change if a justice dies or otherwise steps down before their term is complete. One of the senior justices who has already completed their term can simply fill in until the next regular opportunity for an appointment arrives. Alternatively, legislation could allow appeals court judges to randomly fill in “by designation” on cases where justices are unavailable, a practice already widely used by various states’ supreme courts.

Thus, justices could no longer try to strategically time retirement under a president with similar political leanings, and Senate leaders could no longer keep seats open or rush nominees through at the last minute.

Implementing consistent replacement of the Supreme Court’s justices would also ensure there are more opportunities to add professional and demographic diversity to the bench, expanding its perspectives. Like the lower courts, which often serve as a stepping stone to the highest appointment, the Supreme Court has long been dominated by white men, graduates of a few select law schools, and those with professional backgrounds as corporate attorneys or prosecutors. Justice Ketanji Brown Jackson, as the Court’s first-ever former public defender and Black woman, is a perfect example of the way these new perspectives inform the Court’s jurisprudence. Term limits could thus contribute to making the Court more reflective of the legal profession and the population it serves.

It’s certainly true that implementing term limits would mean that the Supreme Court would have guaranteed relevance in presidential elections. But that’s as it should be, because who appoints justices is an important factor for voters to consider — by design. It’s not politicizing the Court; it’s standardizing expectations around a presidential obligation already laid out by the Constitution.

The Supreme Court is the only branch of the federal government that is not directly accountable to the people through the electoral process. This gives it incredible power, and lifetime terms cement that lack of accountability. We can now see the effect of having a politically manipulated Court that distorts the Constitution in brash defiance of the safety, health, and will of the American people. Term limits are a sensible way to neutralize that ability to amass power in the courts for partisan gain.

Those who oppose reforming the Supreme Court because they believe such reforms politicize the Court are telling on themselves. The Court is already politicized, and if they don’t want to disturb that, it’s probably because they prefer the way it’s politicized and don’t want to lose that power. After all, they were counting on holding onto that control for as long as those justices desire. We know that there’s a better way forward for our democracy.

Rachel Rossi is president of Alliance for Justice.