Presidents don't serve for life. Justices shouldn't, either

The writers focus on both practical and ideological implications of the suggested reforms. They show, for example, that if the switchover to term-limited justices began as soon as the law was changed, it would take an average of 16 years for the transition to be complete. By contrast, proposals that would not kick in until all incumbent justices have left the court could take as long as 69 years to phase in.

The authors note that moving away from SCOTUS life tenure would hardly be an unprecedented change. In a section of the article that explores whether term-limited justices would be apt to change their voting patterns as they neared the end of their period on the bench, they observe that lifetime tenure is not the norm elsewhere. "Almost every US state and many other countries have courts of last resort that use term limits or age limits for justices," they write. "To the extent that the final-period problem is real and significant, we could expect to see it emerge in these other judicial systems. Yet, there is little if any evidence from these judicial systems supporting the claim that term limits negatively affect judicial behavior."

In a column for Politico, another law professor makes the case that ending lifetime appointments for SCOTUS justices "would reduce the political incentives (not to mention the rancor) surrounding retirements, appointments, and the confirmation process." Jeffrey Fisher, who teaches at Stanford Law School, not only agrees that the Constitution should be amended to replace the current arrangement with staggered 18-year terms, but believes such a change would draw bipartisan support.

Today, nearly every Supreme Court vacancy triggers an apocalyptic battle. Thanks to our era's long lifespans and the vast power wielded by the high court — neither of which could have been foreseen by the framers of the Constitution — the stakes in filling every vacancy are enormous. Once a justice is confirmed, he or she is likely to remain on the bench well past the age at which most Americans retire.

But Senate battles over judicial nominations wouldn't be so bitter if the consequences of losing weren't likely to persist for decades. Under the most frequently discussed reform proposal, a justice would leave the court every two years and a new one would be appointed.

As Fisher puts it, "a system under which election to the presidency automatically carries with it two Supreme Court appointments would make such nominations seem less momentous — and, thus, less cause for extreme political machinations."

I have argued that vacancies on the high court ought to become routine, not once-in-a-blue-moon rarities that turn into battles to the death. The court's ideological composition ought to shift as the nation shifts. Just as presidents come and go on a predictable schedule, Supreme Court justices should too.

It isn't only pundits and law school professors who think so. Back in 2016, Justice Stephen Breyer publicly expressed support for limiting the court's members to one long fixed term — "18, 20 years, something like that." Breyer retired at the end of the court's last session, but in an appearance at Harvard's Institute of Politics this month, he made clear that he continues to endorse the idea.

"It would have to be a very long term," he said in answer to a question. "You don't want someone in that job to be thinking about ‘What is my next job?' But if you had a long, definite term — like most countries have some kind of definite term — it would be fine." Were such a system already in place, he added, "it would have saved me a lot of angst."

Life tenure for Supreme Court justices should be replaced by fixed, 18-year terms.

It isn't easy to amend the Constitution. Doing away with lifetime appointments to the nation's highest bench is a long overdue change, but the only way to bring it about is to reinforce public and scholarly support for the idea until most members of Congress are ready to act. Breyer's encouragement helps. Perhaps he could persuade his fellow Supreme Court retirees — Sandra Day O'Connor, David Souter, and Anthony Kennedy — to weigh in as well.

The authors also model the effect that fixed terms would have on the court's ideological balance. With term limits in place, they conclude, the court would be less likely to flip between conservative and liberal majorities — but it would also be less likely to be dominated by partisan supermajorities.

The point of the article is not to advocate for one particular reform over another, but rather to treat Supreme Court term limits as a serious proposition worthy of serious analysis.

Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission."