But there are real risks, and ways in which instituting staggered term limits could spectacularly backfire. Imagine a scenario in which a GOP-controlled Senate blocks a Democratic president’s 2025 and 2027 nominations. A Republican president is then elected in 2028 and the Senate confirms four nominees: in 2029 and 2031, to serve the regular 18-year terms, and for the two empty seats, with 14 and 16 years left on their terms, respectively. This could happen in every cycle of divided government, and would exacerbate, not lessen, the politicization of the confirmation process.
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What’s more, if these 18-year terms had been around for the past few decades, the Court’s makeup would hardly be different; there would now be three George W. Bush appointees, four Barack Obama appointees, and two Donald Trump appointees. In the past 50 years, there have been 30 years of Republican presidents and 20 years of Democratic ones; if anything, liberal voices have been overrepresented on the Court. In other words, term limits wouldn’t change the ideological composition of the Court over time. Nor, for that matter, would they address the fundamental power that each justice wields, which is the reason we see such ferocious political battles every time a vacancy occurs.
There are also transition problems. Since term limits wouldn’t apply to sitting justices, for decades we would have term-limited justices serving alongside life-tenured ones. Moreover, it would take decades to get each seat’s 18-year term aligned with the others. Future vacancies wouldn’t arise in an orderly manner, so some transitional justice could serve five or 10 years before another one arrives. At a certain point, someone could end up “limited” to 20, 25, or even 35 years. Fixes could be put in place to prevent all this, but at some point the complications become more trouble than they’re worth.
Could the Court weather accusations of illegitimacy and special-interest capture in these novel circumstances? And, as some commentators have indicated, 18 years is still a long time—more than the pre-1970 average tenure—so even with a biennial vacancy, the stakes would remain high, especially for those confirmation fights in which the Court’s balance is at stake.
Even if term limits wouldn’t change the Court’s decision making, they might be worth trying anyway, because at least there would be less randomness about when vacancies arise. As the UC Berkeley law professor Orin Kerr put it, “If the Supreme Court is going to have an ideological direction—which, for better or worse, history suggests it will—it is better to have that direction hinge on a more democratically accountable basis than the health of one or two octogenarians.”
The best argument for term limits is that they would make the Supreme Court more of a standard issue in presidential and Senate campaigns and thus less of a political football when the winners of those elections get to nominate and confirm justices.
This post was adapted from Shapiro’s new book, Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court.