Should SCOTUS Term Limits Be Imposed Through Constitutional Amendment? Americans Don’t Care Much
This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.
Professor Sanford Levinson is a long-time critic of both the U.S. Constitution and the Supreme Court as described therein. Almost two decades ago, Levinson argued that imposing term limits on justices was “an idea whose time has passed.” He endorsed non-renewable 18-year terms with full pensions, though he is also open to, instead of full retirement, “circuit riding,” in which justices could hear only lower-court cases, while formally retaining their posts (Levinson 2006, 376).
It seems the idea of term-limiting Supreme Court justices is gaining momentum. In recent years, several conservatives have endorsed the proposal. The bipartisan Biden Commission’s final report explores the idea as a way to bolster the Court’s ideological balance. The report notes that the notion of SCOTUS term limits is popular among the American public and quotes Supreme Court practitioners who think that imposing 18-year, non-renewable terms “warrants serious consideration.”
The Commission doesn’t ultimately endorse that (or any) substantive reform proposal. But it does consider how term limits could be procedurally pursued, if at all. While there was no consensus on the constitutionality or general prudence of term limits by statute, some members of the commission believed that “any statute would raise so many difficult constitutional and implementation questions” that proceeding that way would be “unwise.” These commissioners reasoned that a statute might require the Court itself to rule on the law’s constitutionality, undermining the Court’s own legitimacy. “No matter which way the Court came out on the question,” they say, “the Court’s legitimacy, or perceptions of its legitimacy, would be undermined.” Levinson doesn’t necessarily disagree, but he seems to think it’s probably worth it, as requiring amendment would surely “doom[]” reform altogether.