House Speaker Mike Johnson was probably right to describe President Biden’s Supreme Court reform proposals as “dead on arrival” in his chamber, but that’s just because Republicans don’t want anything to interfere with their 6-to-3 supermajority on the court. It wasn’t that long ago that many Republicans fully supported the most compelling of Biden’s ideas: term limits for justices.
In 2012, before he was a Republican senator from Missouri, Josh Hawley wrote an article saying that if justices knew they would not serve on the court for life, it would “foster a more circumspect attitude toward the court’s role.” The independence created by life terms, he wrote, breeds “an overconfidence in the justices’ capacity to get constitutional questions right.” (And he was in a position to know, as a former clerk for Chief Justice John Roberts.) Term limits were also supported by Senator Marco Rubio, and Senator Ted Cruz proposed putting justices up for election every eight years.
Now it’s Democrats who want to end lifetime appointments, having seen the six justices in the supermajority trample individual rights and do nothing about shameful ethical abuses within their ranks. But an 18-year maximum tenure for justices, as Biden and many others have proposed, shouldn’t be ping-ponged around by whatever faction is dissatisfied with the current court. It’s a good idea born of a mistake by the Constitution’s drafters, who weren’t able to foresee the problems caused by lifetime appointments.
For one thing, life spans were shorter then. Through the 1960s, the average term on the court was around 15 years; after 1970, it became about 26 years. The founders did not fully anticipate how a justice might become insulated from reality after serving on the court for many decades. They didn’t anticipate the potential for arrogance and corruption, as long-serving justices — like Clarence Thomas — would take lavish gifts from special interests without the possibility of penalty.
And they didn’t anticipate that a president like Donald Trump would outsource his appointment power to fierce ideological warrior groups like the Federalist Society, who scour law schools for the most conservative students, get them clerkships and then promote them at a young age for judicial openings, in hopes of keeping them on the bench for more than a quarter-century.
The United States remains the only major constitutional democracy without either term limits or a mandatory retirement age for judges on the highest court. Almost every American state, in fact, has some kind of term limit for high-court justices. Only Rhode Island has neither a term limit nor an age restriction.
Johnson says the system has worked fine for centuries, but it clearly has not. The time for change is long overdue. Biden deserves credit as the first president to join the call for an overhaul.
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