What an 18-Year Term Limit for Supreme Court Justices Might Look Like

By Steve Klepper (Twitter: @MDAppeal)

By a large majority, Americans favor term limits for Supreme Court justices. As Professor Orin Kerr has observed on Twitter: “Reminder: It is incredibly weird that how many Supreme Court picks a President gets depends on who decides to retire or who dies. 18-year terms would make so much more sense than life tenure. Every Prez would get two picks.” I agree with this idea. The devil, however, is in the details.

A constitutional amendment is necessary, and the mere perception of partisan advantage is likely to prevent ratification by the necessary 38 out of 50 states. A delayed effective date could help, even if it may not be enough for an amendment to get traction.

Still, I think it is worth at least starting a conversation on what a term-limits amendment might look like. Other major questions:

  • How do we minimize the risk of a hostile Senate stonewalling a president’s nominees to save vacancies for the next president? I address this point by changing the appointment mechanism.
  • How do we apply it to sitting justices? If the point is to give each president two Supreme Court selections per four-year term, it is hard to make it work without applying it to sitting justices.
  • What will justices do after their terms expire? I’ve written in Maryland Law Review Endnotes to advocate for an outcome-neutral method for retired justices to sit by designation.
  • What do we do about vacancies because of death, resignation, or removal? I think the least problematic path is for the president to appoint a justice to serve out the unexpired portion of a term, with no possibility of reappointment. Plenty of great judges would take stub terms as the capstone to their careers, particularly if they would remain eligible to serve by designation.

With that background, I’ve prepared this discussion draft of a term-limit amendment that also addresses some gaps in the current Article III.

Section 1.The Supreme Court of the United States shall have nine seats for nine justices, including one justice who shall serve as Chief Justice of the United States. The seats shall correspond to staggered 18-year terms, two years apart, such that one term expires at noon on July 1 of each odd-numbered year.

Section 2. No person shall be eligible for nomination or appointment as a justice if that person has previously served as a justice, has not attained the age of 40, is not a citizen, or has not for at least 12 years been a member of the bar of a State, a United States territory, the District of Columbia, or a court of the United States.

Section 3. No earlier than the March 3 immediately preceding the expiration of a justice’s term, the President shall transmit to the Senate a nominee for the term commencing on July 1 of that year. Upon a justice’s death, resignation, or removal, the President shall transmit to the Senate a nominee for the unexpired portion of that justice’s term. In either event, the appointment will become effective 120 days after transmission of the nomination to the Senate, unless the Senate disapproves the nomination by a three-fifths vote within that 120-day period.

Section 4. Whenever there is a vacancy in the office of the Chief Justice, the justices shall, by majority vote, choose a sitting justice to serve as Chief Justice. In the event that such a vote is tied, the most junior justice’s vote shall be discarded. A Chief Justice’s service in that office shall continue for the remainder of that justice’s term.

Section 5. A justice who occupies a seat at the expiration of a term shall become a senior justice. Each justice may transmit to the Senate a list, in descending order of preference, of any senior justices who may fill that justice’s seat by designation in the event of recusal, disability, death, resignation, or removal. A justice may not amend that list more than once per calendar year. A senior justice may serve on any inferior court of the United States, as Congress may provide by law.

Section 6. Following ratification, this amendment shall take effect on January 20 of the first odd-numbered year after two intervening presidential elections. The justices who are serving on this amendment’s effective date shall be assigned to the seats in descending order of their years of service, such that the term of the justice with the longest service shall expire on July 1 of that year. The Chief Justice serving on the amendment’s effective date shall continue to serve as Chief Justice until the expiration of that justice’s term. Any person serving as a retired justice on this amendment’s effective date may serve as a senior justice.

Section 7. The recess appointments clause of Article II, Section 2, Clause 3, shall not apply to appointments to the Supreme Court or any inferior court created under Article III.

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One response to “What an 18-Year Term Limit for Supreme Court Justices Might Look Like”

  1. Michael Wein says :

    This is pretty good Steve. (Though likely an academic exercise). The 18 year term is I assume an acknowledgement of the present 9 Supreme Court Justices, even though that’s not enshrined in the Constitution but codified. (For example, 1789 Judiciary Act had the even-number 6 Justices) Also called for arguably, as the Framers did not contemplate most justices living until 70s and 80s, so while Hamilton, Jay, and Madison (and I would argue Wilson, an early S.C. justice who did a famous set of legal lectures) were convinced about the need for judicial independence needing a lifetime tenure, it was also a practical reflection of the average life expectancy not being as long as it is today. In the 1970s, the average S.C. appointment was even shorter than 18 years, averaging 15 years, a reflection of younger and longer living appointments since the 70s. The recusal issue that sometimes leads to 4-4 ties, mostly unique to the Supreme Court in the U.S., that I and others have discussed, would also be well suited towards a “retired” Supreme Court Justice system, that would be permitted with an “even-handed” Constitutional Amendment.

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