{"id":153459,"date":"2026-06-01T13:38:49","date_gmt":"2026-06-01T21:38:49","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/06\/01\/supreme-court-term-limits-are-the-least-dangerous-most-necessary-reform-on-the-menu\/"},"modified":"2026-06-01T13:38:49","modified_gmt":"2026-06-01T21:38:49","slug":"supreme-court-term-limits-are-the-least-dangerous-most-necessary-reform-on-the-menu","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/06\/01\/supreme-court-term-limits-are-the-least-dangerous-most-necessary-reform-on-the-menu\/","title":{"rendered":"Supreme Court Term Limits Are The Least Dangerous, Most Necessary Reform On The Menu"},"content":{"rendered":"

Why do Supreme Court justices serve for life? That\u2019s not an invitation to debate the meaning of the good behavior clause, I mean\u2026 why life<\/em>? The elementary school civics answer is that the Framers wanted to shield the judiciary from the whims of politicians retaliating against disfavored opinions. But if that\u2019s the only justification, fixed terms accomplish this just as well. And if both options reasonably accomplish that goal, it\u2019s time for a serious discussion about which best serves the country.<\/p>\n

Emory law professor Michael Broyde and I have recently exchanged back<\/a>-and-forth<\/a> about term limits. He thinks they\u2019re bad. I think they\u2019re a reform that balances the Court\u2019s constitutional protections while resolving a litany of harms that have contributed to the Court\u2019s deepening legitimacy crisis. Over the weekend, he published a reply<\/a>.<\/p>\n

First, the common ground. Broyde\u2019s initial article argued that term limits would not depoliticize the courts or lower the stakes of confirmation battles. We both agree on that. Term limits do not (at least directly) force the parties to start selecting dispassionate judge bots \u2014 nor should it. If American law is the cosmos, the Supreme Court is the singularity at the heart of a supermassive black hole. It\u2019s where the barriers between law and politics become fuzzy because the Framers (or at least John Marshall) decided that the Supreme Court decides what law is.<\/p>\n

But just because the Court is inevitably political doesn\u2019t mean the manner by which it practices politics is in the nation\u2019s best interests.<\/p>\n

\n

Term limits are not a reform that removes politics from the court. They are a reform that regularizes politics at the court. I am not sure this is any real improvement.<\/p>\n<\/blockquote>\n

Well, first off: does it make it worse? The Court seems awfully political right now and the public tends to agree. But assuming term limits have any impact on public perception of Court politics, this would be a positive development. Right now, the impact any presidential election has exists behind a veil of ignorance. A given election might prove existential to the fabric of the Republic or a SCOTUS nothing burger. We have no guarantees and we stake our constitutional framework on a justice\u2019s cholesterol level or propensity to retire for purely partisan reasons. With a term limited Court, presidential elections force voters to consider the Court and the role it plays in the national fabric. It doesn\u2019t make justices directly answerable to the public, but as a key factor in shaping the policy of the nation, the Supreme Court is a subject that deserves more than tangential engagement. <\/p>\n

Term limits do indeed regularize politics. And in politics, as in digestive health, regularity is a good thing<\/em>.<\/p>\n

It also returns symmetry to the process. When 2\/3rds of the presidents over the last 18 years are Democrats and 2\/3rds of the Supreme Court are Republican appointees, something is off. And this disconnect can compound over time, exacerbated by strategic retirements locking in deadhand minority influence. Thankfully, most Supreme Court justices are too egomaniacal to think they can be replaced, but the hip, new trend of bequeathing seats risks transforming the Court into a House of Lords running on philosophically hereditary peerage. <\/p>\n

\n

An 18-year term is still a generation. A justice serving 18 years can reshape doctrine on abortion, guns, religion, race, elections, administrative power, presidential authority, and free speech.<\/p>\n<\/blockquote>\n

Absolutely true, but to invoke the old adage from Justice Byron White, every time a new justice joins the Court, \u201cit\u2019s a different court<\/a>.\u201d While every individual judge is around for 18 years, their influence \u2014 and maybe even their jurisprudence \u2014 will be influenced by working with nine new justices over their tenure. Sandra Day O\u2019Connor used to talk<\/a> about how her time working with Thurgood Marshall influenced how she evaluated issues even if it didn\u2019t reverse her vote. An 18-year term is not a generation frozen in amber, but one player in 18 years of constant evolution.<\/p>\n

One of my arguments against Broyde\u2019s fear that term limits create a revolving door for justices is that we\u2019ve never actually seen \u2014 in the modern era \u2014 a justice retire and go back to the private sector.<\/p>\n

\n

But that comparison proves too little. Those justices retired under life tenure. They generally left late in life, often when they were ready to step back from full-time work. That is not the world term limits would create.<\/p>\n<\/blockquote>\n

They did retire late in life. Though under term limits, nominees would likely skew older at the outset without the perverse incentive to extend deadhand influence by finding a candidate in their 40s. This means justices limited out of office will still tend to be near or past retirement age after serving. Merrick Garland was not \u201cold\u201d but let\u2019s be honest, a key factor in Obama picking him for that role was offering Republicans a nominee that would be less likely to stick around. Garland is 13 years older than Elena Kagan and was nominated six years into her tenure. That was a proposed compromise pick, but in a world of term limits, older and more experienced nominees like Garland should become the norm.<\/p>\n

Plus, there\u2019s a reason why John Quincy Adams is the only president to go out and get another lesser elected office afterward.[1]<\/sup><\/a> Barack Obama was, what, 55 when he left the presidency? He could\u2019ve walked into another office. At a certain point, once you\u2019ve sat on the mountaintop, everything else feels like a waste of time. A Supreme Court justice heading to a firm where clients yell at you and the equity partners in M&A make six times your money? I\u2019m not seeing it.<\/p>\n

Allow me to weaken my own revolving door argument a tad. One reason the current crop of retired justices don\u2019t go back to the private sector is that they have multimillion dollar income streams writing books and giving speeches. Collecting a few million to let someone ghostwrite ultimately unrevealing memoirs beats billing 3000 hours. But as retired justices become as common as air molecules under term limits, the market for a former justice\u2019s brain droppings might dry up. On the other hand, the supposed value that a former justice \u2014 a lawyer at least 18 (and probably many more) years divorced from practice \u2014 could provide the private sector would also diminish when they\u2019re a dime a dozen. So this might be a wash.<\/p>\n

And what\u2019s to fear from a revolving door for justices anyway? That they\u2019ll undermine the Court by \u2014 genuinely or not \u2014 shading their opinions for the benefit of their future personal financial interests? Clarence Thomas collected over a half million dollars in gifts and vacations<\/a> from donors and activists with interests before the Court and didn\u2019t report it for years. According to documents uncovered by ProPublica, the Thomas gravy train started in earnest suspiciously after he intimated that he might give up his seat if he didn\u2019t start getting more money<\/a>. If the fear is that justices will give the appearance of corruption for compensation, we don\u2019t need to wait for retirement, they\u2019re already doing it now!<\/p>\n

Hey, maybe telling them that they can get a fat paycheck when they retire from one of the many firms doing appellate work will stop them trying to get rich while on the bench. Because right now the hypothetical corruption Professor Broyde fears is a present-tense feature of life tenure.<\/p>\n

\n

As I have argued elsewhere<\/a>, the better comparison is to judges who must leave a prestigious court because a term or age limit requires it. Bankruptcy judges in important districts with 14-year terms and state supreme court justices subject to age or term limits from major states nearly always continue their legal careers in Big Law. There is no reason to assume former Supreme Court justices would be uniquely immune from those incentives.<\/p>\n<\/blockquote>\n

I guess the question is: what mischief has this caused these other courts? Do we as a society think bankruptcy courts or state supreme courts are illegitimate because former members have taken law firm jobs? I have concerns about revolving doors \u2014 especially among regulators \u2014 but a judge going back to private practice doesn\u2019t seem, based on existing examples, nearly as fraught. And at the aforementioned \u201cSupreme Court singularity,\u201d where justices act much closer to politicians in robes, the revolving door doesn\u2019t seem as much of a risk because it\u2019s impossible to imagine Sam Alito voting to legalize abortion because Perkins Coie teases a sweet Of Counsel role. The justices just aren\u2019t wired that way. For better or worse, they\u2019re too self-important for that. <\/p>\n

\n

If the answer [to who can impose term limits] is Congress by statute, the danger is obvious. If Congress can impose 18-year terms, why not nine year terms? Why not 18 months? Why not 18-day terms? Why not some other structure designed to weaken a court that Congress and the president dislike? Or better yet, treat the court like all presidential appointments and give them four year terms that expire when the president leaves office. Giving the political branches authority to decide how long justices sit on the court is not a technical adjustment. It is a major change in the balance among the branches. It will destroy the court as we know it.<\/p>\n<\/blockquote>\n

This lands harder if you overlook Congress sitting on a veritable Death Star of levers it could wield over the Supreme Court that no one disputes. Could Congress, by statute, expand the Supreme Court to 13 justices? Or 15? Or 41? Of course! Can it strip the Court\u2019s appellate jurisdiction to wall off entire categories of cases? Yeah\u2026 as long as it doesn\u2019t encroach upon original jurisdiction. The Constitution hands the political branches an arsenal \u201cto weaken a court that Congress and the president dislike,\u201d and the only check \u2014 fittingly for a nation founded on democratic principles \u2014 is that the electorate will resist if Congress goes too far.<\/p>\n

Broyde cites, as an example of a dangerous legislative power, the proposal that the Virginia legislature respond to its state supreme court\u2019s comically ill-reasoned redistricting ruling<\/a> by reducing the mandatory retirement age to immediately purge the current justices. But the thing is, the Virginia legislature does have that power!<\/em> The Virginia constitution explicitly grants this authority to the legislature. Yet, despite this undisputed power, the supreme court spit in the eye of the legislature anyway, and the legislature did not invoke this power in retaliation because it \u2014 correctly I\u2019d argue \u2014 deemed it improper and beyond what the electorate would support. That\u2019s how the guardrails are supposed to work.<\/p>\n

Which gets to a fundamental disconnect between our positions. Broyde envisions term limits as upsetting a status quo that he finds acceptable (or at least not problematic enough to endorse any particular reform). I take future reform as a given in a world where public polling shows a growing consensus that the Supreme Court has torched its own legitimacy. In 2020, polls had Supreme Court approval around 70 percent<\/a>. Now, registered voters with a \u201cgreat deal\u201d or \u201cquite a bit\u201d of faith in the Supreme Court is down to a combined 22 percent<\/a>. There are chronic diseases that poll better. I advocate for term limits because it\u2019s a less dangerous reform than expansion. I think court expansion spirals into a tit-for-tat cycle<\/a> just like we\u2019ve seen with redistricting \u2014 and one that is presumptively asymmetrical because the odds of either party achieving the \u201ctrifecta\u201d required to expand the Court (based on present trends) favors Republicans over time. <\/p>\n

\n

If we were honest, we would say all of this is being done because some people do not like decisions issued.<\/p>\n<\/blockquote>\n

This is why it\u2019s so critical to place term limits in the context of court expansion. Court expansion<\/em> is done because some people don\u2019t like the decisions, and it immediately changes the decisions getting made. Term limits return the Court to a lagging indicator of the consensus of the electorate. It does not immediately change opinions, it just sets the Court on a course in line with a reflected will of the preceding 18 years. That might change decisions over the long-term, but it will do it slowly and as an expression of the will of a generation of voters. And if that will changes in the future, the Court will \u2014 gradually \u2014 change too.<\/p>\n

Summing up his position:<\/p>\n

\n

A reform that regularizes appointments but intensifies presidential-court politics, preserves confirmation warfare, creates a lucrative market for ex-justices, and gives Congress power to tinker with the court\u2019s structure is not obviously a cure. It may be an improvement in one respect but it is a huge danger in another. On the whole, this is a bad idea.<\/p>\n<\/blockquote>\n

For my recap: intensifying presidential-court politics is good. The Court matters deeply to American voters and yet it\u2019s so barely understood that most people can\u2019t name a single justice<\/a>. Voters should be incentivized to understand it and discuss it openly as a factor in presidential politics. Term limits will preserve confirmation warfare, but this isn\u2019t unique to either of our arguments, so it can be disregarded. Does it create a lucrative market for ex-justices? One, probably not because most will continue to prefer other pursuits (including retirement) than active litigation. Two, even if it did, this does not erode the legitimacy of other courts (and there\u2019s not much more legitimacy to lose for the Supreme Court anyway). Three, there\u2019s a lucrative and active market for current<\/em> justices that at least one has tied directly to his feeling that he needed more money to justify staying on the Court. And Congress has extensive power to tinker with the Court\u2019s structure now, and term limits is both comparatively less intrusive and possibly the only salve that can avoid a more destructive option. <\/p>\n

On top of this, the advantage of returning the Court to an institution at least indirectly responsive to consensus politics repairs its important and presently sagging legitimacy. Avoiding the risks of expansion and shoring up its legitimacy would outweigh any hypothetical risk of a revolving door to private law firms. <\/p>\n

The Framers envisioned sober-minded judges that needed to be shielded from the whims of politics, but the multi-decade right-wing temper tantrum against the Warren Court reimagined life tenure into a sword as well as a shield. It\u2019s now embraced as a tool to calcify scarce partisan victories to entrench a minority viewpoint that can\u2019t consistently win at the ballot box. Seen this way, life tenure converts the Court into an unchecked superlegislature with seats held as political currency \u2014 investments to be held to hedge against bad times until they can be exchanged. Broyde even agrees that term limits could \u201climit strategic retirement,\u201d but underplays the importance this plays in restoring public faith by removing an exploit of recent invention that delegitimizes the Court. If nerfing the value of a strategic retirement was the only advantage of term limits \u2014 and it\u2019s not \u2014 that would be worth it. The public doesn\u2019t need to see the Court as apolitical, but it does need to see it as small-d democratically political.<\/p>\n

Professor Broyde quotes William Brennan explaining that life tenure exists to insulate the justices from politics. Term limits do this, giving justices an 18-year bubble to work, free from fear of retaliatory termination.<\/p>\n

But we also need to also consider insulating the nation from the politics of the justices.<\/p>\n

Term Limits Won\u2019t Fix the Supreme Court or the Confirmation Process<\/a> [National Law Journal]
Broadside Against Supreme Court Term Limits Misses The Mark<\/a> [Above the Law]
Supreme Court Term Limits Are Not a Cure-All: They Are Extremely Unwise if Enacted by Statute<\/a> [National Law Journal]<\/p>\n

[1]<\/a>Andrew Johnson went back to the Senate, but he never actually ran for president \u2014 he couldn\u2019t even get a nomination as the incumbent \u2014 and this was before the Seventeenth Amendment so the Senate wasn\u2019t really an election anyway, but what the hell we\u2019ll count him too<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n

The post Supreme Court Term Limits Are The Least Dangerous, Most Necessary Reform On The Menu<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
\n\t\t\t\t\t\t\t(Photographer: Samuel Corum\/Bloomberg)\t\t\t\t\t\t<\/figcaption><\/figure>\n

Why do Supreme Court justices serve for life? That\u2019s not an invitation to debate the meaning of the good behavior clause, I mean\u2026 why life<\/em>? The elementary school civics answer is that the Framers wanted to shield the judiciary from the whims of politicians retaliating against disfavored opinions. But if that\u2019s the only justification, fixed terms accomplish this just as well. And if both options reasonably accomplish that goal, it\u2019s time for a serious discussion about which best serves the country.<\/p>\n

Emory law professor Michael Broyde and I have recently exchanged back<\/a>-and-forth<\/a> about term limits. He thinks they\u2019re bad. I think they\u2019re a reform that balances the Court\u2019s constitutional protections while resolving a litany of harms that have contributed to the Court\u2019s deepening legitimacy crisis. Over the weekend, he published a reply<\/a>.<\/p>\n

First, the common ground. Broyde\u2019s initial article argued that term limits would not depoliticize the courts or lower the stakes of confirmation battles. We both agree on that. Term limits do not (at least directly) force the parties to start selecting dispassionate judge bots \u2014 nor should it. If American law is the cosmos, the Supreme Court is the singularity at the heart of a supermassive black hole. It\u2019s where the barriers between law and politics become fuzzy because the Framers (or at least John Marshall) decided that the Supreme Court decides what law is.<\/p>\n

But just because the Court is inevitably political doesn\u2019t mean the manner by which it practices politics is in the nation\u2019s best interests.<\/p>\n

\n

Term limits are not a reform that removes politics from the court. They are a reform that regularizes politics at the court. I am not sure this is any real improvement.<\/p>\n<\/blockquote>\n

Well, first off: does it make it worse? The Court seems awfully political right now and the public tends to agree. But assuming term limits have any impact on public perception of Court politics, this would be a positive development. Right now, the impact any presidential election has exists behind a veil of ignorance. A given election might prove existential to the fabric of the Republic or a SCOTUS nothing burger. We have no guarantees and we stake our constitutional framework on a justice\u2019s cholesterol level or propensity to retire for purely partisan reasons. With a term limited Court, presidential elections force voters to consider the Court and the role it plays in the national fabric. It doesn\u2019t make justices directly answerable to the public, but as a key factor in shaping the policy of the nation, the Supreme Court is a subject that deserves more than tangential engagement. <\/p>\n

Term limits do indeed regularize politics. And in politics, as in digestive health, regularity is a good thing<\/em>.<\/p>\n

It also returns symmetry to the process. When 2\/3rds of the presidents over the last 18 years are Democrats and 2\/3rds of the Supreme Court are Republican appointees, something is off. And this disconnect can compound over time, exacerbated by strategic retirements locking in deadhand minority influence. Thankfully, most Supreme Court justices are too egomaniacal to think they can be replaced, but the hip, new trend of bequeathing seats risks transforming the Court into a House of Lords running on philosophically hereditary peerage. <\/p>\n

\n

An 18-year term is still a generation. A justice serving 18 years can reshape doctrine on abortion, guns, religion, race, elections, administrative power, presidential authority, and free speech.<\/p>\n<\/blockquote>\n

Absolutely true, but to invoke the old adage from Justice Byron White, every time a new justice joins the Court, \u201cit\u2019s a different court<\/a>.\u201d While every individual judge is around for 18 years, their influence \u2014 and maybe even their jurisprudence \u2014 will be influenced by working with nine new justices over their tenure. Sandra Day O\u2019Connor used to talk<\/a> about how her time working with Thurgood Marshall influenced how she evaluated issues even if it didn\u2019t reverse her vote. An 18-year term is not a generation frozen in amber, but one player in 18 years of constant evolution.<\/p>\n

One of my arguments against Broyde\u2019s fear that term limits create a revolving door for justices is that we\u2019ve never actually seen \u2014 in the modern era \u2014 a justice retire and go back to the private sector.<\/p>\n

\n

But that comparison proves too little. Those justices retired under life tenure. They generally left late in life, often when they were ready to step back from full-time work. That is not the world term limits would create.<\/p>\n<\/blockquote>\n

They did retire late in life. Though under term limits, nominees would likely skew older at the outset without the perverse incentive to extend deadhand influence by finding a candidate in their 40s. This means justices limited out of office will still tend to be near or past retirement age after serving. Merrick Garland was not \u201cold\u201d but let\u2019s be honest, a key factor in Obama picking him for that role was offering Republicans a nominee that would be less likely to stick around. Garland is 13 years older than Elena Kagan and was nominated six years into her tenure. That was a proposed compromise pick, but in a world of term limits, older and more experienced nominees like Garland should become the norm.<\/p>\n

Plus, there\u2019s a reason why John Quincy Adams is the only president to go out and get another lesser elected office afterward.[1]<\/sup><\/a> Barack Obama was, what, 55 when he left the presidency? He could\u2019ve walked into another office. At a certain point, once you\u2019ve sat on the mountaintop, everything else feels like a waste of time. A Supreme Court justice heading to a firm where clients yell at you and the equity partners in M&A make six times your money? I\u2019m not seeing it.<\/p>\n

Allow me to weaken my own revolving door argument a tad. One reason the current crop of retired justices don\u2019t go back to the private sector is that they have multimillion dollar income streams writing books and giving speeches. Collecting a few million to let someone ghostwrite ultimately unrevealing memoirs beats billing 3000 hours. But as retired justices become as common as air molecules under term limits, the market for a former justice\u2019s brain droppings might dry up. On the other hand, the supposed value that a former justice \u2014 a lawyer at least 18 (and probably many more) years divorced from practice \u2014 could provide the private sector would also diminish when they\u2019re a dime a dozen. So this might be a wash.<\/p>\n

And what\u2019s to fear from a revolving door for justices anyway? That they\u2019ll undermine the Court by \u2014 genuinely or not \u2014 shading their opinions for the benefit of their future personal financial interests? Clarence Thomas collected over a half million dollars in gifts and vacations<\/a> from donors and activists with interests before the Court and didn\u2019t report it for years. According to documents uncovered by ProPublica, the Thomas gravy train started in earnest suspiciously after he intimated that he might give up his seat if he didn\u2019t start getting more money<\/a>. If the fear is that justices will give the appearance of corruption for compensation, we don\u2019t need to wait for retirement, they\u2019re already doing it now!<\/p>\n

Hey, maybe telling them that they can get a fat paycheck when they retire from one of the many firms doing appellate work will stop them trying to get rich while on the bench. Because right now the hypothetical corruption Professor Broyde fears is a present-tense feature of life tenure.<\/p>\n

\n

As I have argued elsewhere<\/a>, the better comparison is to judges who must leave a prestigious court because a term or age limit requires it. Bankruptcy judges in important districts with 14-year terms and state supreme court justices subject to age or term limits from major states nearly always continue their legal careers in Big Law. There is no reason to assume former Supreme Court justices would be uniquely immune from those incentives.<\/p>\n<\/blockquote>\n

I guess the question is: what mischief has this caused these other courts? Do we as a society think bankruptcy courts or state supreme courts are illegitimate because former members have taken law firm jobs? I have concerns about revolving doors \u2014 especially among regulators \u2014 but a judge going back to private practice doesn\u2019t seem, based on existing examples, nearly as fraught. And at the aforementioned \u201cSupreme Court singularity,\u201d where justices act much closer to politicians in robes, the revolving door doesn\u2019t seem as much of a risk because it\u2019s impossible to imagine Sam Alito voting to legalize abortion because Perkins Coie teases a sweet Of Counsel role. The justices just aren\u2019t wired that way. For better or worse, they\u2019re too self-important for that. <\/p>\n

\n

If the answer [to who can impose term limits] is Congress by statute, the danger is obvious. If Congress can impose 18-year terms, why not nine year terms? Why not 18 months? Why not 18-day terms? Why not some other structure designed to weaken a court that Congress and the president dislike? Or better yet, treat the court like all presidential appointments and give them four year terms that expire when the president leaves office. Giving the political branches authority to decide how long justices sit on the court is not a technical adjustment. It is a major change in the balance among the branches. It will destroy the court as we know it.<\/p>\n<\/blockquote>\n

This lands harder if you overlook Congress sitting on a veritable Death Star of levers it could wield over the Supreme Court that no one disputes. Could Congress, by statute, expand the Supreme Court to 13 justices? Or 15? Or 41? Of course! Can it strip the Court\u2019s appellate jurisdiction to wall off entire categories of cases? Yeah\u2026 as long as it doesn\u2019t encroach upon original jurisdiction. The Constitution hands the political branches an arsenal \u201cto weaken a court that Congress and the president dislike,\u201d and the only check \u2014 fittingly for a nation founded on democratic principles \u2014 is that the electorate will resist if Congress goes too far.<\/p>\n

Broyde cites, as an example of a dangerous legislative power, the proposal that the Virginia legislature respond to its state supreme court\u2019s comically ill-reasoned redistricting ruling<\/a> by reducing the mandatory retirement age to immediately purge the current justices. But the thing is, the Virginia legislature does have that power!<\/em> The Virginia constitution explicitly grants this authority to the legislature. Yet, despite this undisputed power, the supreme court spit in the eye of the legislature anyway, and the legislature did not invoke this power in retaliation because it \u2014 correctly I\u2019d argue \u2014 deemed it improper and beyond what the electorate would support. That\u2019s how the guardrails are supposed to work.<\/p>\n

Which gets to a fundamental disconnect between our positions. Broyde envisions term limits as upsetting a status quo that he finds acceptable (or at least not problematic enough to endorse any particular reform). I take future reform as a given in a world where public polling shows a growing consensus that the Supreme Court has torched its own legitimacy. In 2020, polls had Supreme Court approval around 70 percent<\/a>. Now, registered voters with a \u201cgreat deal\u201d or \u201cquite a bit\u201d of faith in the Supreme Court is down to a combined 22 percent<\/a>. There are chronic diseases that poll better. I advocate for term limits because it\u2019s a less dangerous reform than expansion. I think court expansion spirals into a tit-for-tat cycle<\/a> just like we\u2019ve seen with redistricting \u2014 and one that is presumptively asymmetrical because the odds of either party achieving the \u201ctrifecta\u201d required to expand the Court (based on present trends) favors Republicans over time. <\/p>\n

\n

If we were honest, we would say all of this is being done because some people do not like decisions issued.<\/p>\n<\/blockquote>\n

This is why it\u2019s so critical to place term limits in the context of court expansion. Court expansion<\/em> is done because some people don\u2019t like the decisions, and it immediately changes the decisions getting made. Term limits return the Court to a lagging indicator of the consensus of the electorate. It does not immediately change opinions, it just sets the Court on a course in line with a reflected will of the preceding 18 years. That might change decisions over the long-term, but it will do it slowly and as an expression of the will of a generation of voters. And if that will changes in the future, the Court will \u2014 gradually \u2014 change too.<\/p>\n

Summing up his position:<\/p>\n

\n

A reform that regularizes appointments but intensifies presidential-court politics, preserves confirmation warfare, creates a lucrative market for ex-justices, and gives Congress power to tinker with the court\u2019s structure is not obviously a cure. It may be an improvement in one respect but it is a huge danger in another. On the whole, this is a bad idea.<\/p>\n<\/blockquote>\n

For my recap: intensifying presidential-court politics is good. The Court matters deeply to American voters and yet it\u2019s so barely understood that most people can\u2019t name a single justice<\/a>. Voters should be incentivized to understand it and discuss it openly as a factor in presidential politics. Term limits will preserve confirmation warfare, but this isn\u2019t unique to either of our arguments, so it can be disregarded. Does it create a lucrative market for ex-justices? One, probably not because most will continue to prefer other pursuits (including retirement) than active litigation. Two, even if it did, this does not erode the legitimacy of other courts (and there\u2019s not much more legitimacy to lose for the Supreme Court anyway). Three, there\u2019s a lucrative and active market for current<\/em> justices that at least one has tied directly to his feeling that he needed more money to justify staying on the Court. And Congress has extensive power to tinker with the Court\u2019s structure now, and term limits is both comparatively less intrusive and possibly the only salve that can avoid a more destructive option. <\/p>\n

On top of this, the advantage of returning the Court to an institution at least indirectly responsive to consensus politics repairs its important and presently sagging legitimacy. Avoiding the risks of expansion and shoring up its legitimacy would outweigh any hypothetical risk of a revolving door to private law firms. <\/p>\n

The Framers envisioned sober-minded judges that needed to be shielded from the whims of politics, but the multi-decade right-wing temper tantrum against the Warren Court reimagined life tenure into a sword as well as a shield. It\u2019s now embraced as a tool to calcify scarce partisan victories to entrench a minority viewpoint that can\u2019t consistently win at the ballot box. Seen this way, life tenure converts the Court into an unchecked superlegislature with seats held as political currency \u2014 investments to be held to hedge against bad times until they can be exchanged. Broyde even agrees that term limits could \u201climit strategic retirement,\u201d but underplays the importance this plays in restoring public faith by removing an exploit of recent invention that delegitimizes the Court. If nerfing the value of a strategic retirement was the only advantage of term limits \u2014 and it\u2019s not \u2014 that would be worth it. The public doesn\u2019t need to see the Court as apolitical, but it does need to see it as small-d democratically political.<\/p>\n

Professor Broyde quotes William Brennan explaining that life tenure exists to insulate the justices from politics. Term limits do this, giving justices an 18-year bubble to work, free from fear of retaliatory termination.<\/p>\n

But we also need to also consider insulating the nation from the politics of the justices.<\/p>\n

Term Limits Won\u2019t Fix the Supreme Court or the Confirmation Process<\/a> [National Law Journal]
Broadside Against Supreme Court Term Limits Misses The Mark<\/a> [Above the Law]
Supreme Court Term Limits Are Not a Cure-All: They Are Extremely Unwise if Enacted by Statute<\/a> [National Law Journal]<\/p>\n

[1]<\/a>Andrew Johnson went back to the Senate, but he never actually ran for president \u2014 he couldn\u2019t even get a nomination as the incumbent \u2014 and this was before the Seventeenth Amendment so the Senate wasn\u2019t really an election anyway, but what the hell we\u2019ll count him too<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Why do Supreme Court justices serve for life? That\u2019s not an invitation to debate the meaning of the good behavior clause, I mean\u2026 why life? The elementary school civics answer is that the Framers wanted to shield the judiciary from the whims of politicians retaliating against disfavored opinions. But if that\u2019s the only justification, fixed […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-153459","post","type-post","status-publish","format-standard","hentry","category-above_the_law"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/153459","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=153459"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/153459\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=153459"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=153459"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=153459"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}