Supreme Court reform is increasingly receiving attention from members of the public, political leaders, and scholars. One of the leading proposals is the adoption of 18-year term limits for Supreme Court Justices. Rooted in the principle that no one should have so much public power for life, Supreme Court term limits enhance the Court’s democratic accountability while also preserving judicial independence. Term limits also enjoy supermajority support among the public, with bipartisan majorities in favor of the reform. In recent years, members of Congress have introduced several bills to establish Supreme Court term limits by statute.
While colloquially described as “term limits,” these proposals do not actually remove Supreme Court Justices from office after a fixed term but rather alter their duties according to a fixed schedule. Under the leading proposals, Justices would serve in active service on the Court for 18 years, with duties similar to those that currently exist for Justices. Following this phase of active service, Justices would transition to senior status, during which they would retain their judicial office but have altered responsibilities, such as serving on lower courts, stepping in to hear Supreme Court cases when other Justices recuse themselves, and, in some proposals, hearing Supreme Court cases brought under the Court’s original jurisdiction. A Justice’s transition to senior status would create a new vacancy on the Court.
One question that has been raised about these Supreme Court term limit proposals is whether they can be implemented by statute consistent with the requirements of the Constitution. This memorandum provides a detailed constitutional analysis of statutory Supreme Court term limits, including addressing thoughtful counterarguments and objections that some have raised.
Consistent with the findings of dozens of constitutional scholars and retired judges, it concludes that the leading term limit proposals can be implemented by statute. Doing so is consistent with the Constitution’s text and structure; with the manner in which Congress has long regulated the Court, including the existing system of senior judges; and with the values of judicial independence that animate Article III and its Good Behavior Clause.
