An engaged, impartial judiciary requires independence and protection from the political branches. Judges will never feel truly free to answer legal questions without fear or favor if a president can punish those who rule against him. But in a democracy, presidential elections should have predictable and proportional effects on the makeup of the courts, particularly the Supreme Court. These two values — judicial independence and regular, predictable judicial appointments — are not incompatible. By combining limited, defined term lengths on the Supreme Court with subsequent life terms on a lower court, the judicial system can benefit from the advantages of both independence and predictability.
The importance of judicial independence was recently on display in Learning Resources v. Trump, where two of the three justices appointed by President Trump voted to strike down his tariffs as not authorized under the International Emergency Economic Powers Act. Even though he had chosen the justices, he could not fire them. Two months later, when Trump attended oral arguments in the birthright citizenship case, it again starkly demonstrated the lack of power he (or anyone else) has over the Supreme Court. He could glare all he wanted, but the justices knew that he could neither shorten their tenure nor cut their salaries. That is because the Constitution guarantees that all federal judges “shall hold their Offices during good Behaviour” and that their salaries “shall not be diminished during their Continuance in Office.”
Life tenure and salary protection were granted to federal judges because the Constitution’s framers knew that judges would sometimes be called on to make unpopular decisions. In Federalist 78, Alexander Hamilton wrote that life tenure would contribute to an “independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Life tenure was thus intended to be a “barrier to the encroachments and oppressions of the representative body.” If judges instead had to depend on periodic reappointment, there would be a “danger of an improper complaisance” to the appointing branch of government. Such a system would “be fatal” to judges’ “necessary independence.” And in Federalist 79, Hamilton similarly explained that with a guaranteed salary, a judge “may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation.”
But despite these important benefits, our system of life tenure on the Supreme Court has led to unintended and harmful consequences. As lifespans have increased, the typical tenure of a Supreme Court justice has lengthened. As the Brennan Center has noted, “On average, justices today sit on the bench for more than a decade longer than their predecessors did as recently as the 1960s.” That means vacancies on the high court now arise roughly every three years rather than every two. And as the ideological balance of power on the court has become more important to both parties, qualified potential nominees are now treated as disqualified if they are over 55 because they are not as likely to serve “long enough.” But perhaps most concerning, justices now unabashedly time their retirements for when the presidency and Senate are controlled by their preferred party. Partisans on both sides urge justices to retire not because of infirmity but because of the political moment, such as recent campaigns urging Justices Stephen Breyer and Samuel Alito to retire. (Breyer retired in 2022.)
As a result of this system, the ideological balance of power on the court shifts not predictably due to elections, but unpredictably due to the randomness of justices dying, such as Justice Ruth Bader Ginsburg, or being forced to retire due to health, such as Justice Thurgood Marshall. A system in which constitutional lawyers obsessively follow the justices’ medical updates and the justices likely follow Senate polling averages is not a healthy one.
The question is: Can a new system be designed that fixes the randomness and unseemliness of the current system while retaining the vital benefits of Supreme Court independence? The answer is yes. That system is one in which justices know on the day they are appointed they will serve for 18 years on the Supreme Court and also for life afterward on a federal court of appeals.
First, as many others have convincingly argued, a single 18-year term on the Supreme Court would have many significant benefits. It would ensure predictability of appointments, yielding two appointments per presidential term. It would end strategically timed retirements (and with them the politicized campaigns urging retirements). It would end the unpredictable seismic swings in the balance of the court caused by justices’ deaths and infirmities. And it would allow appointing presidents to be agnostic as to the age of nominees, knowing that all appointees will serve for the same amount of time whether they are 40 or 60.
