Neil Gorsuch was sworn in as a the 113th Supreme Court Justice on April 10th, 2017 at only 49 years old. Cementing a conservative majority for years to come, Gorsuch will play an integral part in how our country interprets the Constitution. He was confirmed as a Supreme Court Justice after the Republican majority in Senate chose to use the ‘nuclear option,’ allowing them to confirm Gorsuch with only a simple majority of 51 votes, rather than a supermajority of 60. This controversial and very young appointment for which the stakes are incredibly high brings up a pressing question: should Supreme Court Justices still serve “during good Behaviour,” as in for life, or should there be a term-limit?
There have been significant advances in biomedicine which have increased the life expectancy of judges, elongating their career on the bench tremendously. The Founders did not implement a term limit on Supreme Court Justices so that the Justices could be protected from “unwarranted interference” from the legislative branch, executive branch, and the public. However, it is clear that the Founders also did not anticipate that life expectancy would increase by forty years since the Constitution’s signing. In 1787, the life expectancy was only 38 years old for white men – an elderly lifespan in comparison to that of Englishmen. Today, the life expectancy for a white male is 78 years old – an age the Founders could only dream of reaching. These biomedical advances have surpassed the expectations of the Founders and their belief that Supreme Court Justices should serve their whole lives. In fact, before 1970, the average Supreme Court Justice term was about 16 years. The first ten Supreme Court Justices only served an average of under eight years on the bench, due to the strenuous process of “riding circuit” town to town on horseback. Today, the average tenure has increased to 26 years, while the longest serving Justice (William O. Douglas) served more than 36 years on the bench. This is not only a significant increase in what the tenure once was, but a considerable amount of time in such an influential position. As the second-youngest sitting Supreme Court Justice, William O. Douglas, for example, sat on the bench through seven different presidents beginning with Roosevelt and ending with Ford.
Many Supreme Court Judges also work long into their own mental decrepitude and are no longer able to compose as balanced and meticulous decisions on the bench. This degeneration is not a new phenomenon, as even in 1787 many Supreme Court Justices left the bench in poor health conditions. William Douglas, for example, barely even functioned during his final 10 months as a Supreme Court Justice. Following an intense stroke in 1975, Douglas’s colleagues voted to nullify any decisions on which Douglas was the final vote, keeping Douglas on the bench solely to fill a seat rather than as a productive Justice. Furthermore, many judges simply put on their “intellectual autopilot” as they near the end of their tenure. Harry Blackmun, for example, had his clerks write many of his opinions in their entirety. This practice has become more widespread today due to the elongated careers of Justices; they solely act as “editorial justices” and many scholars state that the quality of opinions has decreased, especially towards the end of Justices’ careers.
Especially after the contentious confirmation of Neil Gorsuch and other Supreme Justices nearing a typical retirement age, this heated debate of judicial term limits must be brought to the forefront of attention.
The Supreme Court Justice position has also brought with its lifetime tenure the risk of a larger ego, and therefore, many Justices are reluctant to step down even as they enter old age. Paul Carrington (a Democrat) and Roger Crampton (a Republican), both opponents of the life tenure for Supreme Court Justices, state that the Supreme Court Justices’ immense power “carries dangers of arrogance, hubris, and abuse… The Founders could not foresee that increases in longevity would imperil the rotation in powerful office essential to representative government.” This ego is not a new development, but is rather engrained within the American political institution. However, the ego of Justices has increased due to the higher stakes imposed – a Justice’s tenure is much longer than it once was, allowing them to be even more influential for a longer period of time than they once were.
Due to the elongated careers of Supreme Court Justices, the ineffectiveness of their tenure, and the unmatched hubris of Supreme Court Justices, a term limit should be imposed on these Judges. It is heavily debated what the exact term limit should be – some say eight or ten years, while others say 14 or 18 years. Either way, this term limit would lower the stakes of the confirmation of Judges while also allowing significant time to create a legacy and promote positive change within the court.
The opponents of enacting a term limit worry that these limits would politicize the judicial arena, a chamber that is supposed to stand neutral. However, is the Supreme Court neutral today? After the Republican Senate would not even hear Obama’s Supreme Court pick of Merrick Garland, and then proceeded to enact the “nuclear option” to confirm Neil Gorsuch, the confirmation process and the Court are already very politicized. Term limits would decrease the politics involved in the judicial branch as the term limits would be staggered throughout presidencies – each president would be able to appoint at least one Supreme Court Justice depending on the term limit. The Justices would still be appointed rather than elected so the public would not be able to ‘sway’ the appointment any more than they do now. The area would be less politicized as Justices would not be able to “run” for re-election, but instead would be forced to retire from the Supreme Court directly after their term is over. The stakes would be lower as there is a clear end-in-sight for every Justice so the debates in the Senate would not be as contentious or polarizing between parties. This change in the United States judicial system could be achieved through a constitutional amendment. There is also global precedent to making the highest courts’ judges stick to term limits. Switzerland, praised for its fair criminal justice system, has term limits of six years on their highest serving judges
The public also points to the need for these institutional changes. A nonpartisan Reuters/Ipsos opinion poll asked the public if they support imposing a term limit on Supreme Court Justices. The responses were solidly positive, as 66% of the respondents would support a ten-year term, while only 17% were opposed. This issue is not a partisan one, as shown by the poll: 66% of Democrats, 74% percent of Republicans, and 68% of independents favored the 10-year limit on Supreme Court Judges.
As displayed through the public’s support and the positive change for the political arena that would be achieved through term limits, it is clear that they must be imposed in order to continue to provide a neutral and functional Supreme Court. Due to the elongation of tenures due to old age on the bench, Supreme Court Justices work far too long. Their hubris is heightened due to these longer terms and the higher stakes at play. Especially after the contentious confirmation of Neil Gorsuch and other Supreme Justices nearing a typical retirement age, this heated debate of judicial term limits must be brought to the forefront of attention.