September 11, 2024

Advocates of term limits for Supreme Court Justices, mindful of the overgrown, transformative power of the Court and the ethical lapses of some of its members, have recommended staggered, 18-year terms and regularized presidential appointments for Justices as a means of reducing the heated and divisive partisanship that has raised the confirmation process to a fever pitch and undercut public confidence in the judiciary, what Alexander Hamilton called “the least dangerous branch.” 

Integral to these proposals is the guarantee that each president would have two—and only two—appointments during a four-year term. This reform will enhance the legitimacy of the Court because sitting Justices will be more closely tied to recent, electoral outcomes. In the first 180 years of the Supreme Court’s history, the average tenure of a Justice was 15 years. The average service today is 26 years. As things stand, some members of the current Court may hold their seats over the course of nine presidential terms, vesting in a single person largely unchecked and unaccountable intergenerational authority to shape the direction of the law and the life of the nation. It has been observed that no other major democratic country vests such power in its high court judges who decide constitutional cases. Nations that once granted “life tenure” to their supreme judges, such as Australia and England, no longer do.

The high stakes of a Supreme Court appointment have laid bare some of the worst partisan political instincts and calculations in our time. Desire to “control” the Court, for example, has led the Senate to abandon its long-held constitutional norms and duties, including its constitutional role of granting “advice and consent,” to presidential nominations to the Court. In March of 2016, Republican senators refused to consider President Barack Obama’s nomination of Merrick Garland, asserting that it was “too close” to the election. That rationale was unmasked in the vote to approve Amy Coney Barrett in October 2020, even though early voting in that presidential election had already begun. The Senate should have voted up or down on the Garland nomination, rather than sacrificing its solemn responsibility to partisan interests in the name of preserving a vacancy on the Court.

A regularized schedule for presidents to make two appointments—say, in the first and third years of their four-year term—would lower the temperature of the appointment process and restore the dignity and bipartisanship that once typically characterized the discussions and debates on the question of approving a nominee for a seat on the Supreme Court. The relatively equal footprint of both major political parties on the Court, dependent, of course, on election results, would lower the stakes of appointments, encourage compromise and promote accountability. The public would expect cooperation, and gamesmanship would come at a high cost. The disparity in the number of presidential appointments to the Court would be mitigated, and with it the emergence among the citizenry of a consensus that a rough balance on the Court exists. The imbalance in appointments—Jimmy Carter zero, Donald Trump three, and Bill Clinton, George W. Bush and Barrack Obama, two each in eight years—would be rectified, facilitating the rise of a new ethos that would heighten confidence in the Court as a law court, rather than a political court, and bolster belief in the rule of law and the principles of republicanism.

The growth of the Court’s policy-making power is undeniable. The opportunity to promote one’s view of the meaning of the Constitution, and all that that authority entails for the citizenry and the nation, is a heady brew, to be sure, but it should not be impervious to the doctrine of checks and balances, the essential pillar of American Constitutionalism.  A career of 18 years on the Supreme Court is a long tenure. Providing each president with the opportunity to appoint two justices during a four-year term will bolster the public’s confidence in the Court and, in turn, promote its accountability to the people. One of the rationales for supporting the 17^th Amendment, which provides for the direct election of U.S. Senators, was the expectation that voters could hold senators accountable for their critical role in the appointment process. In a similar manner, the regularized appointment process will deter senators from engaging in partisan stonewalling of nominees and encourage senatorial cooperation, compromise, responsibility and accountability.   

-David Adler