Supreme Court Term Limits are Unconstitutional

August 2, 2024

Term Limits and Constitution | First Liberty Insider

by First Liberty Institute • 7 minutes

The radical Left is pushing several proposals to overhaul the Supreme Court and destroy our judicial system. Atop their list is ending life tenure for Supreme Court justices, a change that President Biden endorsed this week in an op-ed in The Washington Post.

“I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court,” Biden wrote.

According to the President, this would “reduce the chance that any single presidency radically alters the makeup of the court for generations to come.”

As they hear more about this proposal, Americans must understand that term limits for Supreme Court justices violate the Constitution.

Judicial term limits are nothing more than an attempt to cancel justices. It’s simply the Supreme Court Coup by a different name. It is packing—and effectively destroying—the Court, two years at a time.

As designed by the Framers of the Constitution, life tenure for Supreme Court justices has worked well for more than 230 years and is an essential component to ensure judicial independence. Judicial term limits would destroy one of the hallmark features built into our system of government.

Term limits violate the text found in Article III of the Constitution. The “good behavior” clause found in Article III—stipulating that justices “hold their offices during good behavior”—is rightly understood under English common law as an appointment for life. The term says what it means and means what it says. Judges may serve so long as they are properly carrying out their duties and behaving in good fashion.

When calling for judicial term limits, the far Left and their politicians do what they frequently do: play fast and loose with the text of the Constitution. Virtually every time they do not like what the Constitution or one of the Court’s opinions says, they try to change the rules and disguise extreme changes as “reform.”

In Federalist No. 78, Alexander Hamilton penned one of the most eloquent defenses for lifetime judicial tenure. He wrote that judicial independence “can certainly not be expected from judges who hold their offices by a temporary commission.”

Hamilton described a judiciary that serves with life tenure under good behavior as “certainly one of the most valuable of the modern improvements in the practice of government.” According to Hamilton, we want judges serving with life tenure, because this is “the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”

Writing for National Review, Hillsdale College Professor Adam Carrington explained:

“People may not always think right in the short term. They may have prejudices against a person under trial or one seeking justice. To be sure, history is rife with examples of public pressure causing congressmen and presidents to cave when their principles told them better…With essentially life tenure, the justices—at least partially—are insulated from this pressure. They can discharge their duties and apply the law equally to popular and unpopular litigants.”

Federalist 78 also includes a warning: Taking away life tenure and allowing judges to be influenced by public pressure—what Hamilton refers to as the “occasional ill humors in the society”—would quickly upend the rule of law. Doing so would destabilize the separation of powers and possibly destroy our precious constitutional system.

Some on the political Left argue we should pass term limits legislation because Americans support it. Polls suggest most voters favor term limits for elected politicians. But Americans would be wise not to fall for the idea that term limits are good across the board. What works in legislative races does not work so well when applied to federal judges.

The Executive Branch is already limited to two terms for each president. And many have made the argument that the Legislative Branch might benefit from limiting the terms of senators and representatives. Professor Carrington makes the case:

“Congress writes the laws, and the executive signs or vetoes them. Because of this setup, the legislative and executive branches are and should be elected. They are and should, then, have a limit on each term of office before the elected representative must receive approval or rejection by the people.”

But Carrington goes on to argue that the function of the Judicial Branch is different:

“Yet as they take no part in making the law, the courts do not have the same relationship with it as members of the legislative branch (or at least they shouldn’t). Instead, they only apply the law as written…The concept of judicial review recognizes that we want the courts to respect our highest law when any other law conflicts with it.”

Unlike the other branches of government, Supreme Court justices are not elected by the people every two, four or six years. This was not an oversight. It was a deliberate decision.

With life tenure, the Founders sought to ensure justices would focus foremost on interpreting the law. It was a way to encourage their fidelity to the Constitution and the rule of law, instead of worrying about personal gain or what’s best for them after they leave the Court. Carrington summarizes it well: “We’re not looking for a mirror in the Court—we are looking for an anchor, one that will keep us moored to our commitments to the law, constitutional or otherwise.”

Getting rid of life tenure also reduces the wisdom judges obtain through age and experience. Think of some of the most influential justices in American history—such as Chief Justice Marshall—who impacted the rule of law in our country, because they served on the Court for decades.

Imposing a system of term limits would make it very difficult—or even impossible—to produce judges who have longstanding, distinguished careers and thereby, less opportunity for them to positively impact the law in the long-term. Life tenure is a way to ensure judges can decide cases not according to the temper of the times or political expediency, but by applying centuries-old legal traditions, relying on precedent, facts, and the intent and text of the law and the Constitution.

Whether it’s court packing or judicial term limits, the Supreme Court Coup is all about those who want to bend the rules and get around decisions they don’t like. At the end of the day, this all boils down to raw power.

Help us spread the truth! Americans who care about their freedoms need to speak up and stand up against this attempted coup.

500,000+ Americans have already signed the Declaration of Judicial Independence saying: NO to court packing, NO to suspect judicial reforms, NO to the Supreme Court Coup.

Forward this information to your family, friends, neighbors and coworkers. More Americans need to know the threat this scheme poses. We need to work together to help save the priceless heritage of the U.S. Supreme Court.