The United States has the unfortunate distinction of being the only major modern democracy that allows unaccountable judges to decide constitutional cases until they die or choose to retire. On Thursday, a group of Democratic senators introduced a bill to bring the Supreme Court into the 21st century by making the body’s composition depend a little more on the public will than the whims of the Grim Reaper.
The bill, introduced by Senator Sheldon Whitehouse of Rhode Island, would allow every president to appoint one justice to the Supreme Court during the first 120 days of their first and third years in office. At the same time, it allows only the nine most recently appointed justices to hear appeals from federal courts, which comprise the vast majority of the Supreme Court’s docket. Regularizing appointments in this way effectively creates 18-year term limits. Justices who complete their terms would still technically be on the Court, but only able to hear the “original jurisdiction” cases that make up a small subset of the Court’s docket—a nod to the Constitution’s provision that judges “hold their Offices during good Behaviour,” which in practice has been tantamount to life tenure.
The bill wouldn’t take effect until the presidential term after it becomes law. So, in practice, if the bill were to pass tomorrow, the winner of the 2024 election would get to appoint a justice, and the longest-serving current justice would transition into a senior status kind of role. That means Clarence Thomas, who has been on the Court for literally my entire life, would be the first justice bumped off the appellate docket. Next up would be Chief Justice John Roberts in 2027, also replaced by the winner of the 2024 election. The winner of the 2028 election would replace Justice Samuel Alito in 2029, and then Justice Sonia Sotomayor in 2031, and so on.
This approach would strengthen the link between the Court’s membership and election results, and push an off-the-rails appointment process a bit more on track. If you know when justices will be appointed and when their terms will end, it deters justices from strategically timing their retirements, and presidents from appointing infant ideologues to maximize the length of their lifetime terms. The 2018 retirement of Reagan appointee Justice Anthony Kennedy, for example, paved the way for another Republican president to appoint Kennedy’s former clerk, Brett Kavanaugh, as his successor. And Justices Neil Gorsuch and Amy Coney Barrett were both under 50 when Trump nominated them—practically spring chickens by judicial standards. Regularized appointments would also minimize the impact of untimely deaths, like that of Justice Ruth Bader Ginsburg in 2020, which Trump used to rush through one last Supreme Court confirmation during a presidential election he lost.
L-R: nine lawyers who could use a retirement plan (Photo by Jabin Botsford/The Washington Post via Getty Images)
The system in place today is simply absurd: Right now, a person can lose the popular vote, nonetheless become president, and then pack the highest court full of reactionaries who can reshape the law however they want for the rest of their lives without regard to democratic majorities who disagree. (This is not a hypothetical: Donald Trump appointed more justices to the Supreme Court in four years than either Barack Obama or George W. Bush did in eight.) This is how you end up with a Court with an approval rating that barely cracks 40 percent nonetheless making sweeping decisions that nearly two-thirds of Americans don’t like. An 18-year term would, gradually, limit the power of an unrepresentative body to drag an unwilling country into the colonial era for generations.
Whitehouse’s bill is one of many Court reform bills pending in Congress, including several relating to term limits. One such bill, sponsored by Representative Ro Khanna of California, would similarly impose 18-year terms via biennial appointments. It explicitly excludes the current justices, so it would not limit Clarence Thomas’s power to reimagine the Second Amendment as a constitutional protection for gun manufacturers’ profit margins. A bill introduced by Representative Hank Johnson of Georgia explicitly includes members of the current Court, and doesn’t preserve a small special docket just for them once they’ve aged out. Unlike Whitehouse’s bill, Johnson’s would also take effect immediately, meaning it would allow the elected branches to put Thomas’s stuff out on the curb right now.
No one piece of legislation will address every conceivable problem with the Supreme Court. But the multitude of pending bills is a reminder that problems with the Supreme Court abound. Only Court expansion would do something about the immediate crisis: a supermajority of six FedSoc freaks that let business owners announce that they’re open to the public, unless any members of the public are gay. And only meaningful ethics reform would limit what justices are empowered to do (or get away with) during their terms, whether 18 years or otherwise. Enacting a term limits bill would be good. It would also only be a good start.
