Justice Breyer has it right on term limits for the Supreme Court
© Greg Nash

Over the last month, those following 2020 coverage or reading editorial pages will tell you that reforming the U.S. Supreme Court – and deciding whether to increase the number of justices – has become a political lightning rod. That’s why it’s so notable that this week when publicly asked about “packing” the nation’s highest court, Justice Stephen Breyer rebutted the suggestion and advocated an alternative: capping the length of service for justices at 18 years.

Why would a justice articulate his support for a policy that would limit the power of his institution? It’s possible that Breyer is tacitly acknowledging something those of us in the court-reform business have been saying out loud for years – that the power balance in Washington is off and it’s time to do something about it.

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And though term limits may seem vanilla to Democrats compared to the “thrill” of adding four more justices if they take power in 20 months, so we’re told, vanilla (and terms limits) are actually much more popular with voters than court-packing.

Recall that when the Founders gave justices life tenure, the goal was to shield those serving on the court from the political pressures of the day. It’s no secret, though, that today’s justices are polarized along partisan lines much like our other gridlocked political institutions. Terms of 30 or 35 years, as has become the norm, deepen that polarization.

Limiting Supreme Court justices to a single 18-year term would solve two key problems that have led to the polarization we see on today’s court.

First, life tenure gives justices the perverse incentive to stay on the court until a president with whom they tend to agree is in the Oval Office. That means some justices – both those appointed by Democrats, and those appointed by Republicans – have in recent years held on to their seats, past their primes, until the “right” person is elected to the White House. That’s despite the judicial branch being supposedly nonpartisan.

Second, life tenure hasn’t helped make the Supreme Court nomination process any less vicious. It’s likely contributed to making the process worse. Under the current regime, it’s not a priority for a president to find the best candidate – such as a jurist with experience outside an appellate courtroom, who will serve with integrity. Instead, the party in charge scrambles to find the youngest (often, most ideological) nominee to control the seat for decades to come. And with the party out of power unsure of how many years it will be until the next seat opens up, partisan warfare over the nominee’s qualification invariably ensues.

Instead, 18-year term limits means a new justice would be added to the court every two years, regularizing the process. If you, a Republican, don’t like the nominee in 2023, then it’s possible that the next one, in 2025, will be one you can support. And you won’t be hanging on for 11 years, like the gap between the Breyer and Samuel Alito nominations!

Nominations aside, we’ve all experienced of late the fractiousness of a court whose decisions hang by a thread. From health care to gun rights to money in politics – not to mention several polarizing death penalty decisions recently – razor-thin margins are frequently determining the fate of the toughest issues facing the nation. Sometimes the right wins; sometimes the left wins. But overall, that our top jurists have proven incapable of coming together, for the betterment of the country, to craft rulings that may be narrow in scope but wide in the vote margins solidifies the notion that our justices are merely legislators in robes, unabashedly concocting holdings with clear partisan outcomes.

Court-packing wouldn’t help disabuse the country of that notion, as it can quite easily dismissed as a partisan ploy to shift the balance of the court in one direction. On the other hand, the strength of term limits as a reform is its even-keeled nature; it’s a solution that both parties can get behind since it doesn’t disproportionately benefit one party or the other.

A single, standard 18-year term for justices would reduce the politicization of the court, increase the rotation of those serving, guard against cognitive decline and broaden the pool of potential nominees. These are all positive outcomes, no matter where you sit on the political spectrum – and even, apparently, if you sit on the Supreme Court yourself.

Gabe Roth is executive director of Fix the Court, a non-partisan grassroots organization focused on increasing transparency and accountability at the U.S. Supreme Court.