U.S. Supreme Court justices have a job for life once they’re nominated by the president and confirmed by the Senate. But a majority of Americans would like to see that change, according to a court reform report prepared by researchers at Washington University in St. Louis and Pennsylvania State University.
The recent confirmation battle over Judge Amy Coney Barrett, President Donald Trump’s pick to replace the late Justice Ruth Bader Ginsburg on the U.S. Supreme Court before Election Day, has reignited talk of reforming the high court.
Some liberal Democrats have floated the idea of expanding the court. The survey, taken in July before Ginsburg’s death, finds that fewer than one-third of Americans favor expanding the U.S. Supreme Court, but a majority — 60% — does support setting term limits.
“Do I think that's worth contemplating? I guess I do, in part because when the Constitution was drafted in 1789, people had an average life span of about what — 40, 45 years?” says Nicole Huberfeld, professor of law at Boston University.
“And so, a lifetime appointment was not as long as it is now, where our average life span is 78, 80 years. And people are getting appointed, in the last several rounds of appointments, in their late 40s. I don't think anyone really contemplated that the justices would serve these 30- or 40-year terms on the Supreme Court,” Huberfeld adds.
In a 2017 letter to Congress, 21 constitutional scholars from universities such as Harvard, Duke, Columbia and the University of Michigan called for limiting the terms of Supreme Court justices to 18 years. Once their term ends, the justices could continue to serve on a lower court, if they chose, or fill in on the Supreme Court in the event of a death or unexpected vacancy.
Fix the Court, a self-described nonpartisan group that advocates for court reform, favors the plan, which would allow each president to nominate a justice in the first and third years of his or her term.
“Having a regularized appointment process would actually lower the temperature of each appointment and make partisans say to themselves, ‘OK, I don't like this guy, but in two years, maybe my guy or gal in two years, maybe my guy's going to be nominated,’” says Gabe Roth of Fix the Court. “So, instead of always throwing everything you have in a specific nominee, you know that there's going to be a chance to get a nominee that you may like more in just two years.”
Some legal experts believe reforms are necessary in part because the Supreme Court has amassed too much power.
“Maybe a crisis will cause Americans to really reconsider: Why do we give the courts so much power?” Daniel Epps, a law professor at Washington University, who clerked for Justice Anthony Kennedy, told Politico recently.
“Nothing important should turn on whether some old person chooses to retire or keep working until they’re in their 90s,” he added. “It’s a crazy way to run a country.”
“In the last 20 years, instead of the political branches deciding who's won a presidential election, whether or not there's a death penalty, how environmental regulations are construed, how health care laws are construed, how religion is practiced in the public sphere, and on and on, all those decisions are being made by the Supreme Court and not our elected officials," Roth says.
“I think that having a limit on the judicial tenure will reduce each justice’s individual power and reduce the judiciary power as a whole over time,” he adds.
While she does think term limits for justices is worth looking into, Huberfeld, of Boston University, is not convinced the high court has too much power over Americans.
“It is the job of the court to interpret the Constitution and the laws made thereunder. That is what the court is designed to do. I actually think the dynamic is something slightly different, which is that people are using the court as a tool to fight legislation they disagree with by coming up with novel theories that are pushed in lower federal courts in front of sympathetic lower federal court judges,” Huberfeld says. “I think it's more a matter of litigation strategy and the money that gets poured into litigation strategy than it says about the Supreme Court.”
The court reform report found that 47% of respondents believe it should take a super-majority of the Supreme Court — at least seven of the nine justices — to be in agreement before declaring any law passed by Congress unconstitutional.