The counterplan solves court legitimacy---limits each president to 2 nominations, solving ideological bent

For all these reasons, there are growing calls for reform. Proposals range from creating an ethics code to expanding the Court to stripping its jurisdiction. One of the most popular options would also be among the most transformative: establishing 18-year terms and regularized appointments for justices. Under this system, justices would sit in staggered terms of active service on the Court, such that a new vacancy would open every two years. Each president would have two, and only two, appointments during a four-year term.

This paper explains how such a reform would work, why it would bolster the Court’s legitimacy, and how to transition from the current system. It also discusses how the core elements of this reform could be adopted by statute, consistent with the Constitution, by establishing the role of “senior justice.” Among other things, senior justices would hear cases by designation on the lower courts, step in to hear cases on the Supreme Court in the event of a recusal or unexpected vacancy, and assist with the management and administration of the federal courts. This framework is similar to the existing system of senior judges that has been in place for more than a century and has applied to the justices since 1937. However, rather than leave the timing of senior status up to the justices’ discretion, under this reform Congress would create a schedule by which justices assume senior status automatically after 18 years of active service on the Court.

The case for reform is compelling. On average, justices today sit on the bench for more than a decade longer than their predecessors did as recently as the 1960s. Several justices now on the Court are likely to hold office over as many as nine presidential terms. Unbounded tenure allows a single justice to shape the direction of the law for generations, without regard for the evolving views and composition of the electorate. It puts justices in an elite and unaccountable bubble for decades. No other major democracy in the world provides life tenure for high court judges who hear constitutional cases.

With today’s intense ideological polarization, every Supreme Court vacancy also takes on monumental stakes. Exercises of raw power have replaced long-established constitutional norms, upending the confirmation process. This constitutional hardball was illustrated most notoriously when Republican senators refused to consider President Barack Obama’s March 2016 nomination of Merrick Garland, claiming that it was too close to the presidential election, only to rush through a vote for Amy Coney Barrett in October 2020, when early voting in that year’s presidential election had already started.

One result of these dynamics has been that presidents have had starkly disparate imprints on the Court. President Donald Trump appointed three justices in four years, whereas Presidents Bill Clinton, George W. Bush, and Barack Obama each appointed two justices in eight years. This wide variation, as well as its impact on the development of American law, is impossible to square with principles of democratic legitimacy.

By contrast, with 18-year active terms and regularized appointments, every president would have an equal imprint on the Court during a four-year term. Such a system would enhance the democratic link between the Court and the public, making the institution more reflective of changing public values while preserving judicial independence.

This reform would also encourage a better-functioning and less politically charged confirmation process. Shorter terms would lower the stakes of each nomination, while regularized appointments would both encourage compromise and allow for public accountability in the event of confirmation impasses. Regularized appointments would also eliminate the destabilizing impact of late-term vacancies because an unexpected death or retirement would not create a new seat to fill; instead, a senior justice would temporarily step in. And this reform would ensure that no individual holds largely unchecked power for decades at a time.

Broad swaths of Americans support term limits for justices. Since 2022, several polls have found that more than two-thirds of the public are in favor of this reform, including more than three-quarters of Democrats, two-thirds of independents, and more than half of Republicans. This bipartisan support is long-standing: since at least 2014, polls have consistently shown supermajority support for term limits (see appendix).

A broad array of scholars likewise support term limits. When the National Constitution Center convened separate groups of conservative and progressive scholars in 2020 to draft their ideal constitutions, both proposed 18-year terms. The Presidential Commission on the Supreme Court, which was created by President Joe Biden to evaluate options for Supreme Court reform, described term limits as enjoying “considerable, bipartisan support.”

The Constitution gives Congress wide latitude to determine the Supreme Court’s structure and responsibilities. Congress should use its power now to reform the Supreme Court.

An Increasingly Unaccountable Court

In Federalist 78, Alexander Hamilton famously described the Supreme Court as the “least dangerous branch” of government. At the time, it was an accurate description. In its first decade, the Supreme Court heard an average of just six cases per year. The first chief justice, John Jay, stayed on the bench for only five years and declined to be renominated after serving as governor of New York because, he said, the Court lacked “energy, weight, and dignity.” In 1803, Chief Justice John Marshall asserted the power of judicial review in Marbury v. Madison. Yet the Supreme Court did not strike down another federal law as unconstitutional for more than 50 years, when, in Dred Scott v. Sandford, it notoriously barred Congress from freeing slaves within federal territories.

But times have changed. As the size, scope, and power of the federal government expanded, first with the post–Civil War Reconstruction Amendments and then again in the 20th century with the rise of the administrative state and the civil rights movement, so too did the Supreme Court’s power and national importance. This has altered the incentives of justices to stay in office and the incentives of presidents and senators in the confirmation process. And it has encouraged the political branches to cast aside governing norms to secure seats on the Court — particularly as both the Court and the political parties have grown increasingly polarized. Together these trends have led to a dysfunctional system.

Excessive Terms

Modern justices are serving unusually long terms. For the first 180 years of U.S. history, justices served an average of approximately 15 years. But in the 1970s, the average tenure began to balloon. In recent years, justices have served an average of 26 years — equivalent to six and a half presidential terms. Justices appointed at around the age of 50 — which includes a supermajority of justices on the Court today — could serve as long as 35 years. In the future, justices are likely to serve even longer, as the average age of retirement continues to climb while the average age of appointment keeps declining.

These lengthening terms mean justices leave a substantially greater imprint on the Court and the country than did their predecessors. At the same time, the elected branches — and the people they represent — have far fewer opportunities to shape the Court’s direction. Today a 30-year-old has seen only 10 new justices join the Court; 60 years ago, a person of the same age would have seen twice as many.

Generational seats also leave individual justices with too much power for too long, giving nine people control over an entire branch of government for decades. This is especially concerning because justices, by design, enjoy a rarefied and largely unaccountable position. As Chief Justice John Roberts once acknowledged while working as a White House attorney, “The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today.” The trend toward lengthening terms also heightens the risk that justices will stay on the Court after their capacity as jurists begins to decline.

Strategic Retirements

Justices routinely time their retirements to create vacancies for ideologically aligned presidents to fill. These so-called strategic retirements enable justices to lock in their jurisprudence on the Court for multiple generations — a practice inconsistent with the principle that it is the values of the public, not of individual justices, that should shape the future direction of the law. Strategic retirements also reinforce the view that justices are simply extensions of the political parties that appointed them. As former federal judge Michael McConnell observed in testimony before the Presidential Commission on the Supreme Court, the current system “puts unseemly pressure on sitting justices to time their retirement to permit a president of their political party to name the replacement.” The practice also opens the door to inappropriate horse trading between justices and the presidents who would fill their seats. Prior to announcing his retirement, for example, Justice Anthony Kennedy reportedly lobbied President Trump to include then judge Brett Kavanaugh’s name on his list of potential Supreme Court nominees.