President Joe Biden’s recent announcement of several proposed Supreme Court reform measures includes the goal of establishing term limits for the justices. However, the term limits process is complicated, with two distinct but uncertain paths.
In a recent op-ed in The Washington Post, Biden supported the idea of term limits, along with a presidential immunity constitutional amendment, and ethics legislation.
“Term limits would help ensure that the court’s membership changes with some regularity,” he wrote. “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.”
The Presidential Commission Report
How a Supreme Court term limits system would work is an issue that has been debated for some time. In April 2021, Biden issued an executive order that asked a bipartisan commission of scholars, judges, and practitioners to produce a detailed report, released in December 2021, that included proposed Supreme Court reforms.
The commission did not take a position on implementing term limits. But it did discuss how a constitutional amendment would work, and it addressed the arguments made by some scholars that Congress could pass a law instead of a constitutional amendment to effectively put term limits in place.
An amendment to the Constitution could include limitations on the justices’ length of time on the bench, the number of justices on the Court, the time of transition to fixed-term appointments, and the activity of justices after their term has expired.
Commission members were divided on the question of Congress limiting the terms of Supreme Court justices without an amendment. The Constitution’s Good Behavior Clause in Article III, Section 1, states that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
The proponents of Congress setting Supreme Court term limits argued that lawmakers could establish an active/senior justice model where justices serving on the Supreme Court would become senior justices after 18 years and move on to other duties in the judicial system. Other alternatives included a system where justices remained on the Court for 18 years and then only heard original jurisdiction cases, or a system that gave the president the ability to promote federal judges to the Supreme Court for a fixed time.
Presidential Commission members critical of these proposals pointed to the Good Behavior Clause, and also the Appointments Clause in Article II, Section 2, which recognizes that “judges of the Supreme Court” differ from other federal judges.
Other Arguments about Tenure
The Congressional Research Service, in a December 2023 report, also raised questions about the ability of Congress to set term limits by statute. “Because Article III guarantees that Supreme Court Justices ‘shall hold their Offices during good Behaviour,’ most commentators agree that Congress could not impose a term or age limit for Supreme Court Justices without amending the Constitution,” wrote legislative attorney Joanna R. Lampe.
Lampe noted that the supporters of the congressional statute option believed the words “good Behaviour” did not actually indicate a lifetime Supreme Court appointment and that justices who then served on lower federal courts would remain in judicial service in the context of the Good Behavior Clause.
Lampe also cited several prior Supreme Court decisions on the subject. In Northern Pipeline Construction Company v. Marathon Pipe Line Company (1982), Justice William Brennan wrote that, “the 'good Behaviour' Clause guarantees that Art[icle] III judges shall enjoy life tenure, subject only to removal by impeachment.” And in United States v. Hatter (2001), Justice Stephen Breyer quoted a tax case from 1920, citing the Good Behavior Clause as “the practical equivalent of life tenure” that “helps to guarantee what Alexander Hamilton called the ‘complete independence of the courts of justice.’”
Among the supporters of the congressional statute options is the Brennan Center for Justice, which sees the active/senior justice model as fully complaint with Article III. In a June 2023 paper, Alicia Bannon and Michael Milov-Cordoba made the argument that the model was “consistent with the Constitution’s text and structure; with the ways in which Congress has long regulated the Court, including the existing system of senior judges; and with the values of judicial independence that animate Article III and its Good Behavior Clause.”
Bannon and Milov-Cordoba noted that Article III said “remarkedly little” about how the Supreme Court should operate. “Rather, it leaves it to Congress to make significant determinations regarding the Court’s structure and powers pursuant to Article III and its authority to ‘make all Laws which shall be necessary and proper.’”
They also believed that two Supreme Court precedents gave Congress the ability “to define the content of the office of a justice” by changing their roles to lighten their duties or to serve on the lower courts.
“The Constitution leaves Congress with wide latitude to define the Court’s structure and the justices’ duties as required by the needs of the day, constrained by structural protections that preserve judicial independence,” they concluded.
Other scholars remain skeptical of the ability of Congress to implement term limits without a constitutional amendment. “I strongly support 18-year term limits for Supreme Court justices, but I believe that this would require a constitutional amendment, especially if applied to current justices,” said UC Berkeley Law School Dean Erwin Chemerinsky told the Los Angeles Times on Monday.
The Path in Congress
For now, the Supreme Court term limits proposal has two paths in Congress. Under the amendment process, two-thirds of the House and the Senate would need to approve the language for an amendment to the Constitution, with three-quarters of the states ratifying the amendment. (There is also procedure, never yet used, that allows two-thirds of the states to propose amendment language at a convention.) Neither the President nor the Supreme Court has a role in the amendment drafting or ratification process.
In the traditional legislative process, a majority of the House and Senate need to pass a resolution with matching language by a simple majority once the measure makes it to a floor vote. The president has the option to veto any legislation, with two-thirds of the House and Senate able to override the veto.
Of course, the Supreme Court has the power of judicial review, and it can determine that a law passed by Congress is unconstitutional. In Marbury v. Madison (1803), Chief Justice John Marshall famously said, “It is emphatically the province and duty of the Judicial Department to say what the law is.”
For now, the likelihood of a term limits vote in Congress in the short term is unlikely. But the debate over Supreme Court term limits and the ways to implement them are unlikely to fade from the court of public opinion.
Scott Bomboy is the editor in chief of the National Constitution Center.
