Scarinci: Term limits for the United States Supreme Court
Perhaps unsurprisingly, a recent C-SPAN poll found that 68% of Americans support term limits for US Supreme Court justices. While discussions of term limits for elected officials have been part of the political debate for as long as I can remember, public support for term limits for judges has never been stronger.
Our founding fathers considered imposing term limits on elected officials, although the proposal did not make it into the final draft of the US Constitution. Although hundreds of years have passed since its signing, much of the debate has remained the same. How do we balance the experience that comes with years in office against the need to infuse fresh blood?
Term limits for elected officials
The Articles of Confederation provided term limits that limited representatives to three terms in a six-year period. So when framing the Constitution, the framers debated imposing similar term limits on members of Congress.
In an anonymous anti-federalist essay, likely author Melancton Smith argued that without term limits, lawmakers would become “inattentive to the public good, insensitive, selfish, and a source of corruption.” He added: “Even good men in office, with time, imperceptibly lose sight of the people, and gradually fall into measures which are detrimental to them.
Meanwhile, other writers, such as James Madison, opposed term limits. Madison expressed concern that waves of inexperienced lawmakers would lead to corruption and inefficiency, saying that the greater the proportion of new members and the less informed the mass of members, the more likely they will be to fall into the traps that may be set for them.
In the end, the Madison side prevailed, and term limits were not incorporated into the Constitution. However, they remain a controversial issue. In 1951, the states ratified the 22nd Amendment to limit the president to two terms after the historic 13-year term of Franklin D. Roosevelt. Over the past few decades, various proposals to impose term restrictions on Congress have been introduced. As several states enacted reforms in the 1990s, the U.S. Supreme Court declared term limit laws unconstitutional. US Term Limits v. Thornton, 514 US 779 (1995), holding that artStates cannot impose term limits on their representatives in the federal government beyond those provided for in the Constitution.
Maximum age limits for elective offices
Unsurprisingly, the Founding Fathers ignored age limits for political office. After all, the average life expectancy was only 38 for a white man alive in 1787. With many Americans now living into their 70s, 80s, and even 90s, the question of age limits has become much more relevant in the modern world.
At 78, President Joe Biden is the oldest person to assume the presidency. However, when he was elected to the Senate, he just made the age requirement, turning 30 just weeks after his election and before being sworn in in January 1973. This is because the founding fathers set minimum ages for several elective offices. As dictated in the Constitution, the president and vice president must be 35 years of age or older when taking office; a senator must be 30 years old and a member of the House must be 25 years old. The Constitution does not set any age requirement for Supreme Court justices.
In establishing age requirements, the founding fathers were concerned about the maturity of applicants, with founder George Mason stating that “if asked [he would] to be forced to declare that his political views at the age of 21 were too crude and wrong to merit influence on public action.
Many have raised similar concerns when seeking to establish upper age limits, arguing that mental acuity declines with age. According to a recent YouGov poll. However, critics of age limits for Congress argue that since voters are free to determine whether a candidate has reached their “expiration date” at the polls, formal restrictions are unnecessary. Similar arguments are what prevailed at the Constitutional Convention.
Term Limits for Supreme Court Justices
Because they cannot be elected, the case for age limits is stronger for Supreme Court justices who receive lifetime appointments. The average term for a judge is now longer than it has been at any time in U.S. history and far exceeds the average term in the 1700s when The federal judiciary was established.
As Supreme Court justices stay in office longer, the court’s power has increased, raising the political stakes for nominations and confirmations. A PBS Poll 2020 found that 77% of Americans support restrictions on the length of service of Supreme Court justices. In addition to concerns about the unchecked power that comes with lifetime service, proponents of age limits also argue that older judges may be more out of touch with average Americans.
Proponents of term limits on the Supreme Court have notable supporters, including Chief Justice John Roberts. “The Framers embraced life tenure at a time when people simply didn’t live as long as they do today. A judge isolated from the normal streams of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today,” the chief justice said. “Setting a term of, say, fifteen years would ensure that federal judges would not lose touch with reality during decades of existence in an ivory tower. It would also allow for a smoother and greater rotation among the judges. Both developments would, in my view, be healthy.
Feasibility of Term Limits
Even if federal term/age limits get broad support, it will still be an uphill battle, as a constitutional amendment is needed to implement such limits. Under the US Constitution, there are two paths for amendments. The first requires a two-thirds vote of approval by the U.S. House of Representatives and Senate, while the other involves a national convention called by a two-thirds vote of state legislatures. In both cases, the amendment must then be ratified by three quarters of the States.
Donald Scarinci is well known to our readers. He is the founding partner of Scarinci Hollenbeck, one of NJ’s largest law firms, attorney and advisor to many NJ elected officials, trustee of the NJ Institute of Local Government Attorneys, editor of the popular Constitutional Law Reporter. https://constitutionallawreporter.com/ and author of four books.