Term limits for Supreme Court justices are a popular idea, but would require amending the Constitution and would be unlikely to affect current judges, legal scholars say.
On Monday, President Biden endorsed term limits as one of “three bold reforms to restore trust and accountability” in the court.
Biden has also called for a constitutional amendment to say that former presidents do not have immunity from criminal charges for their actions in the White House, which would overturn the Supreme Court’s decision in early July.
And he approved a “binding code of conduct” that applies to Supreme Court justices.
Biden was less clear on how the term limits could become law and whether they would apply only to new judges or instead force older judges to retire.
“I support a system in which the president will appoint a justice every two years to spend 18 years in active service on the Supreme Court,” Biden said Monday in an op-ed in the Washington Post.
Legal experts say such a change could only be implemented through a constitutional amendment.
“I strongly support 18-year term limits for Supreme Court justices, but I believe this would require a constitutional amendment, especially if applied to current justices,” said UC Dean Erwin Chemerinsky. Berkeley Law School.
Polls show that most Americans support the idea of limiting the terms of Supreme Court justices. It is particularly popular with many Democrats and progressives, who seek to limit the power of the current 6-3 conservative majority of the court.
But amending the Constitution requires the support of two-thirds of the House and the Senate and three-quarters of the states.
An Associated Press poll last summer found that 67% of Americans supported the idea of fixed terms for Supreme Court justices rather than actual life terms. This includes 82% of Democrats and 57% of Republicans.
The Constitution states that judges and justices, once appointed, “hold their offices during good behavior,” which was understood then and since to mean they had life terms.
Democrats in the House and Senate have proposed bills that would set an 18-year term for Supreme Court justices and push older justices into semi-retired “senior status” after 18 years on the court. If enacted now, it would leave three conservatives: Justices Clarence Thomas and Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr.
But the bills have no chance of moving forward in this Congress, and would face a tough constitutional challenge if they were enacted in the next Congress.
Georgetown law professor Steve Vladeck wrote that “Biden’s belated push for unaffordable (and ineffective) reforms only drives home the opportunity he missed to change the national conversation about the Supreme Court.. .. These reforms have no chance of being adopted, and even if they are adopted, they are unlikely to be effective soon.”
When Biden took office in 2021, he was under pressure to do something about the conservative court that had three new Trump appointees. He appointed a presidential commission to study the matter and issue a report, but nothing more was done.
“For most of American history, members of Congress have assumed that the only constitutional way to achieve term limits for Supreme Court justices is through constitutional amendment,” the report said. . “Beginning in 1807, and continuing to the present day, more than two hundred proposals have been introduced in Congress to amend the Constitution to establish term limits for Supreme Court justices or for federal judges generally” .
None were adopted. The first bill proposing to set term limits was introduced in 2020, the report noted.
Chemerinsky said that setting term limits by law “would be particularly problematic if applied to current judges because they were appointed and confirmed with the clear understanding that they were lifetime appointments.
However, if term limits don’t apply to current judges, it won’t make a difference for a long time.”
He noted that six of the current justices are under the age of 70, and conservative Justices Brett M. Kavanaugh, Neil M. Gorsuch and Amy Coney Barrett are likely to serve for 20 years or more.