A Closer Look at SCOTUS Lifetime Tenure

June 29, 2017

by Caroline Fredrickson

With people’s longevity increasingly approaching the century mark, lifetime tenure on the Supreme Court is itself getting old.  Some scholars on both sides of the ideological divide have offered a proposal: an 18-year term limit on Supreme Court Justices’ service. This idea may relieve the nominations process of painful political pressure and bring both accountability and better predictability into our judicial system. And, the term aligns with historic numbers – eighteen years is close to the average term of service on the highest court in the past 100 years.

Why change a time-honored tradition?

Today's Supreme Court is “polarized along partisan lines in a way that parallels other political institutions and the rest of society;” government scholar Norm Ornstein observes.

“Lifetime appointments give presidents the incentive to overvalue younger, more ideological candidates and overlook those who are at the height of their careers,” the nonpartisan Fix the Court group asserts based on Ornstein’s writings.

“Life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history,” Professors Steven G. Calabresi and James Lindgren point out in their paper. They also found Justices remain influential on the court well into their 80s, longer than ever before in American history. These days court vacancies actually delay justice; political storms form too quickly after a Justice who spent decades handing down decisions dies.

Thus, 66 percent of Americans polled during last year’s monumental crisis wanted to end life tenure for Supreme Court Justices, as they endured the colossal failure to fill a departed Justice’s seat.

Congress could remediate past errors of judgment by offering some basic term limit math – 9 x 2 = 18. Term limit or new legislation could stipulate that, as each of the nine justices now serving for life steps down or passes on, every president would put an imprint on the Supreme Court twice. This would likely happen in July when a session wrapped up - and older more experienced legal statesmen and women could have the opportunity to serve.

Some justices support the idea. The eldest Justice Stephen Breyer remarked recently, “if there were a long term – 18, 20 years, something like that – I’d say that was fine. In fact, it’d make my life a lot simpler to tell you the truth.”

The 18-year term may relieve justices unable to fulfill their duties during the final stages of their careers. Professor David Garrow, has found that the advanced age of some Supreme Court Justices at times over history led to impaired decision making. An 18-year rule would allow Justices to retire gracefully when their physical and mental capability is strong rather than when they die, are ill or trying to navigate the political winds of change.

Departed Justice Antonin Scalia served the U.S. Supreme Court for nearly 30 years. Three decades, American Constitution Society Board member Erwin Chemerinsky observed “is too long for anyone — liberal or conservative. That is just too much power in one person's hands for too long a period," the noted constitutional law professor added.

“It is interesting to note, Linda Greenhouse of Yale University once wrote, “that no other country has adopted life tenure for judges of its constitutional court.” It appears to be a fundamental flaw in our system.

Ruth Bader Ginsburg, age 84, commented in a story naming her an influential icon, “People ask me sometimes, when do you think it will be enough? When will there be enough women on the court?  And my answer is, when there are nine.”

Odds are that shorter terms could give more women an opportunity to serve. That would be one way the court would begin to look and feel less like other branches of government.

Our framers rightly wanted to protect the court’s decisions from the whims of the people, but increasingly that is exactly what mires the nominations process. This simple idea supported by Republicans and Democrats alike may be the “long-term fix” President Trump sought on the stump. Imagine constituents lauding their representatives for strengthening their constitutional rights?

The Facts of Life Terms

The facts of life tenure support a change. Smart people have run the numbers so far:

  • Presidents are expected to make 25 SCOTUS appointments over the next 100 years.
  • Presidents made 47 SCOTUS appointments in the previous 100 years.
  • From 1869 to 1969 presidents made 60 SCOTUS appointments.
  • There is a 10 percent chance during the next 100 years that a president sitting two full terms will not appoint someone to the SCOTUS.
  • Over the next 100 years, the average tenure of the justice service will be about 35 years. For the past 100 years, the average tenure is 18 years.