Timeless Tenure: The Case Against Supreme Court Term Limits
The Authority of Law statue by sculptor James Fraser sits outside the Supreme Court. Photo courtesy of Thomas Hawk.
The Supreme Court is facing a legitimacy crisis of its own making. The 2020 Senate confirmation of Amy Coney Barrett forged a six-justice conservative majority on the Court. Since then, it has bent the law to its will. In just four years, the Court has eliminated the constitutional right to obtain an abortion, invalidated race-conscious admissions programs, hobbled the administrative state, and blessed the presidency with absolute immunity for official acts. Additionally, reports have revealed that Justice Clarence Thomas enjoyed luxury vacations on the dime of billionaire Republican donor Harlan Crow, and Justice Samuel Alito flew flags associated with the January 6 insurrection. Accordingly, the Court’s approval rating has sunk to a measly 44%.
In response, several politicians have pushed for Court reform, most notably former President Joe Biden, whose reform plan calls for the enactment of 18-year term limits for sitting justices. Such reform, however, will fundamentally alter, and surely mangle, our constitutional system. The Framers of the Constitution designed the Supreme Court to transcend the ordinary oscillations of the political process. Lacking any support in constitutional text, structure, or history, term limits would distort this foundational principle. Far from fixing a Court in peril, term limits will disrupt the law and further embroil the Court in partisan politics.
The Judiciary’s Constitutional Design
Article III of the Constitution states that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” The sole constitutional limit on the tenure of federal judges is the requirement of “good Behaviour.” This clause emphasizes the character of the judge rather than the length of tenure, reflecting the Framers' focus on the impartial administration of law. Although conspicuous, constitutional context confirms that this is a feature, not a flaw, of the judiciary. Indeed, Article I, which establishes the structure of Congress, explicitly limits the terms of representatives and senators to two and six years, respectively. Moreover, Article II mandates that a president be elected every four years. While the elected branches are subject to term limits, federal courts are not. This structural distinction distances federal judges from the ebb and flow of public opinion, underscoring their independence.
History, too, favors independence over accountability. Alexander Hamilton considered independence central to preserving individual liberty and judicial integrity. “Periodical appointments,” Hamilton argued, would “be fatal to their necessary independence.” Accordingly, The Framers enshrined judicial independence by exempting federal judges from term limits. Taken together, the text, structure, and history of the Constitution evince that independence is at the heart of the judiciary; term limits would jeopardize that insulation.
The textual authority of term limits is equally as faulty. Supporters of term limits rely on two constitutional provisions to support congressional authorization. First, Article III, Section 2 subjects the Court’s appellate jurisdiction to the “Exceptions, and … Regulations as the Congress shall make.” This clause, coupled with Congress’s authority in Article I, Section 8 “to make all Laws which shall be necessary and proper” to carry out its enumerated powers, the argument goes, provides extensive power to Congress to enact 18-year term limits. That is wrong twice over. First, the plain text of the exception in Article III, Section 2, is silent on judicial tenure. Further, its context disavows alleged authority for term limits. Section 2 deals exclusively with the jurisdiction of the Supreme Court, confining the “judicial power” to “Cases” and “Controversies,” and establishing the Court’s original and appellate jurisdiction. Only then does the Exception and Regulations Clause appear. Article III, Section 2, therefore reads most naturally as Congress’s ability to place exceptions and regulations on the jurisdiction of the Supreme Court, not on the institution of the Supreme Court.
The Necessary and Proper Clause argument is no more persuasive. The Court affords Congress broad deference under this clause, but does not allow Congress to “undermine the structure of government established by the Constitution.” Because the enactment of term limits would do just that, they cannot be rooted in the Necessary and Proper Clause.
The Disruption of the Law
Supporters of term limits argue that, under such a regime, the Court’s ideas, energy, and understandings will not stagnate. Sitting justices will no longer serve for decades and the public will not be at the will of a specific coalition of like-minded justices. No longer would the Court be entitled to remain blissfully ignorant as society evolves. Yet the rapid confirmations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett between 2017 and 2020 have provided the necessary votes to overrule precedent and usher in sea changes in the law. The very Court that the public so strongly disparages stands as the best example of how frequent turnover opens the floodgates for continuous change, upheaval, and disruption in the law. Thus, a regime of term limits would only incur more jolts to the law.
Besides, this argument misconceives the role of the Court. Since the Court’s ruling in Marbury v. Madison in 1803, it has been the judiciary’s sole duty “to say what the law is,” not to make popular decisions. That is the function of the people’s elected officials. To be sure, the legitimacy of the Court is partially derived from public faith that the Court is acting impartially. But the desire to enact term limits to keep the Court up-to-date with public sentiment is misplaced.
At face value, term limits ensure the promise of renewal to the American people by preventing the nation from being confined for decades by the archaic views of unelected judges. Certainly, changes in the composition of the Court have been to the benefit of all Americans. In 1954, the Court rectified its egregiously wrong holding in Plessy v. Ferguson and unanimously decreed that racial segregation finds no refuge in our constitutional system. Changes in the Court’s membership, however, have cut the other way as well. The replacement of Ruth Bader Ginsburg with Amy Coney Barrett moved the Court markedly to the right. Since then, the Court has moved the law to fit what it understands to be the Constitution’s original meaning. And it has taken the Court only four years to go this far.
There is no doubt that term limits would refresh the Court. The central question is whether such a change is necessary. The field of law is intended to be stable and develop gradually over time. The doctrine of stare decisis, which admonishes judges to stand by previous decisions, achieves that by preventing frequent doctrinal shifts in the law. The Court has described stare decisis as contributing to the perceived legitimacy of the judiciary because it dispels notions of individual impulse. 18-year term limits would harm this bedrock principle, primarily by increasing the probability that precedents will be overruled, inviting disruption in the law.
Turning the Political Temperature Down
It is no secret that the confirmation process has devolved into political theatre. Former President Biden’s Presidential Commission on the Supreme Court lamented that the confirmation process has devolved into “multi-million dollar lobbying campaigns.” However, term limits are an improper remedy for this disease. Indeed, Supreme Court nominations have been embroiled in politics since the founding. The nomination of a Supreme Court justice is a momentous occasion, making heightened scrutiny predictable. And while the unpredictability of Supreme Court vacancies contributes to their attention, it is not certain that a mere uptick in the frequency of appointments would lower the controversy surrounding them. The link between term limits and decreased polarization of the Court is thus shaky at best.
Some scholars have suggested revisions to the nomination process such as a non-partisan nomination commission or requiring a supermajority to approve judicial—especially Supreme Court—nominees. These solutions are far more sound and cautious. Such changes are tailored to the polarization surrounding the confirmation process and will not mutate the Supreme Court.
If anything, term limits would enhance the politicization of the Court. Presidents are entirely dependent on a vacancy arising during their term. A regime of term limits would grant every President at least two appointments. This would fuel the erroneous view that the justices are puppets of the President who appointed them and serve exclusively to actualize their policy agenda.
What is more, the elections of state judges further signal increased partisanship. Over 30 states elect local and state supreme court justices, 87% of whom will face voters at some point during their tenure. The contrast between state and federal judges represents a trade-off between judicial accountability and independence. Although state-level judges are closer to the people, researchers have found higher levels of impartiality and poorer opinion writing. In fact, a liberal justice on the Louisiana Supreme Court refused to dissent in death penalty cases for fear of adverse electoral outcomes. In 2024, at an oral argument in Glossip v. Oklahoma, Justice Elena Kagan highlighted the disjointed writing in an opinion by the Supreme Court of Oklahoma. The election of state judges strongly suggests that independence should carry more weight than accountability, further cautioning against the enactment of term limits.
The Court, now controlled by a firm conservative majority, has remodeled the law to its outlook. Most prominently, the nation is now a patchwork of abortion rights, with 13 states completely outlawing abortion and 12 others enacting restrictive bans on the procedure. Although the constitutional right to obtain an abortion stood for half a century, its demise was straightforward, as articulated by the dissenting justices in Dobbs: “because the composition of th[e] Court has changed.”
The enactment of term limits for justices would only invite more disruption. In addition to disfiguring the judiciary’s structure, they would ensnare the Court in political histrionics. Justice Stephen Breyer once remarked, “[i]t is not often in the law that so few have so quickly changed so much.” All those who enjoy the law’s protection rely on its stability. There is no reason to revoke such a bedrock principle.
Quinn Morris (CC ’27) is a staff writer from Lexington, Kentucky. His interests include judicial politics and constitutional law.