If Brett Kavanaugh, who is 53, is appointed to the U.S. Supreme Court, it’s likely that he will be there for the next 30 or even 40 years. The same is true of Neil Gorsuch, who was 49 years old when he was confirmed in 2017. If the U.S. Constitution doesn’t explicitly call for lifetime appointments–and every other democracy in the world has term limits for the judges on its highest courts–does it make sense for Supreme Court justices to serve for decades?
“Life tenure isn’t doing much to ensure that the justices remain above politics,” says Gabe Roth, executive director of Fix the Court, a nonpartisan, grassroots organization that is calling for several reforms of the court. The group is advocating for a new system: Justices would serve 18-year terms, and presidents could appoint a new justice every two years.
The proposal, drawn from recommendations from law professors, aims to “lower the stakes in a way that would make each nomination seem less like partisan Armageddon,” Roth says. In the current system, political parties have no incentive to find a judge who is actually most qualified for the job.
“They’re incentivized to find the youngest, most partisan nominee that they believe can get 51 votes in the Senate,” he says. “So there are plenty of jurists in their late fifties, early sixties, who may have more experience or a better temperament to be on the Supreme Court, but they’re getting passed by because every appointment became a generational opportunity.”
Right now, justices have an incentive to stay on the bench until a president with their own views is elected. The new system would make departures more predictable. If justices didn’t serve for 20 or 30 years at a stretch, it might also help keep the court a little more in touch with the current world (just look at what happens when the current justices try to make sense of modern technology). And critically, if political parties knew that their time would soon come–and that the policy future of the country didn’t depend on the chance of a death or retirement when a particular president was in office–the nomination process might be less of a political circus.
The change could happen with a new law rather than a constitutional amendment, Roth says. The Constitution says that justices “shall hold their Offices during good Behaviour.” The first five justices served an average of nine years; there was no expectation that they would serve for life. (More recently, the average tenure has been 25 years.) A new law could specify that someone could be a federal judge for life, but could only serve 18 years on the Supreme Court.
“I think 18 years makes sense because it’s long enough to establish yourself on the court, to have impactful opinions, to have a legacy, but it’s not so long that it seems feudal or anti-democratic,” says Roth. Others have advocated for 10- or 12-year term limits.
If the 18-year term limit went into effect for the next appointment after Kavanaugh, that would likely mean that there would be more than nine justices on the court until the middle of the century (the organization laid out one possible trajectory). Remember: There’s also no constitutional requirement that there be nine justices on the court.
It’s a change that could be politically possible. In one 2017 poll, 66% of Democrats and 74% of Republicans supported the idea of 10-year term limits. “There’s nothing in my proposal or even some of the other proposals that are out there that I’ve seen that’s partisan by nature,” says Roth. It might be less likely at the moment with the current leadership in the Senate Judiciary Committee. But things could change with grassroots support. “Given the fractiousness and the frustration that the public on both sides has seen with this most recent nomination, I think the time for reform at the Supreme Court is ripe.”
Correction: This post has been updated to reflect Judge Kavanaugh’s correct age.