Ending the judicial Wheel of Fortune: The need for 18-year Supreme Court terms

Ending the judicial Wheel of Fortune: The need for 18-year Supreme Court terms
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The U.S. Supreme Court has become so polarized that only by replacing the justices' lifetime tenures with 18-year terms can we restore its moral authority.

This summer and fall, President Donald Trump and Senate Republicans nominated and confirmed Brett KavanaughBrett Michael KavanaughChief justice of California Supreme Court leaves GOP over Kavanaugh confirmation Doug Jones: Carmakers 'scared to death' over Trump tariffs McCaskill: 'Kavanaugh spectacle' made the difference in midterm loss MORE to the Supreme Court to revive the Court’s 30-year balance of five conservatives and four liberals, which was interrupted briefly when Justice Anthony Kennedy retired in June. Republicans effectively said they are entitled to this 5-4 ratio when they refused to even hold a hearing in 2016 for President Obama’s nominee to the Court, Merrick GarlandMerrick Brian GarlandSupreme Court not for life? Beware perils to its independence Mellman: Enemies of democracy Debate over term limits for Supreme Court gains new life MORE.

The Democrats have won the popular vote in six of the last seven presidential elections, yet unless Ruth Bader Ginsberg can stay on the bench until she is 87, there may soon be six conservative justices on a Supreme Court no longer in touch with the people.

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High court justices live longer and serve longer than they used to. Until 1970, the average justice served 15 years and retired at 68. Today, he or she serves 26 years and retires at 79. Clarence Thomas, for example, has been on the court 27 years, but shows no sign of retiring soon. Neil Gorsuch and Brett Kavanaugh, just 49 and 53 when President TrumpDonald John TrumpBiden, Sanders lead field in Iowa poll The Memo: Cohen fans flames around Trump Memo Comey used to brief Trump on dossier released: report MORE appointed them, could still be on the bench in the 2050s.

The Supreme Court’s makeup has become a ghoulish lottery, dependent on a justice’s age, health, and refusal to retire at 75 or even 80. Donald Trump has only been president 21 months, yet has been lucky enough to appoint two justices, while Jimmy Carter, who was president four years, didn’t get to pick any.

Since 1977, the Republicans have held the presidency 22 years and the Democrats 20, but Republicans have appointed ten justices to the Supreme Court while the Democrats have chosen only four. 

America is the only country whose supreme judges are appointed for life. In Europe, high court judges have terms of 6 to 12 years, or face mandatory retirements at 65, 70 or 75. (In Canada, it is 75.) In the U.S., 47 of the 50 states have terms of 6 to 14 years for their highest judges, while in Massachusetts and New Hampshire judges must retire at 70. Only Rhode Island gives life tenure to its supreme court judges.

The Supreme Court’s membership is too important to be left to chance. It is time to amend the Constitution to limit a justice’s time on the bench to 18 years. The current justices would continue to serve for life, but they would not be replaced when they die or retire. Instead, each president would appoint two new justices during a four-year term.

Why 18 years, and not 16 or 20? Because 18-year terms would allow a president to appoint a new Supreme Court justice every two years, like clockwork, every odd-numbered year – nine justices every 18 years. Each president would appoint two justices during a four-year term, and four justices during an eight-year presidency. This would eliminate the element of luck in Supreme Court appointments, end strategically-timed retirements, and ensure that the high court truly represents the American people.

Justices who are already on the court with lifetime terms would be encouraged to retire in odd-numbered years, but if they declined to be helpful, the Supreme Court could temporarily expand to 10 or 11 justices for a few years until the number dropped back down to nine. (If a justice should die or resign in the middle of an 18-year term, the new appointee would only serve the remaining portion of the departing justice’s 18-year term.)

Can the number of justices on the Supreme Court really be a numeral other than nine? Yes, although there have been nine justices since 1869, there is nothing in the Constitution that says that the number has to be nine, and from 1789 to 1869 the number of justices was 6, 5, 6, 7, 9, 10 and 7 before it settled at nine.

Democrats and Republicans can both support 18-year terms if the amendment's effective date is far enough in the future to make the politics of the measure impossible to determine. The amendment need not take effect until four, eight or even 12 years after it is ratified. This way, an 18-year term limit is simply a matter of good government.

The Founding Fathers gave Supreme Court justices lifetime terms because they wanted them to be resistant to political pressure, but 18-year terms are also long enough to preserve a justice’s independence. No political party or faction will be hurt by this sensible reform. Indeed, to oppose 18-year limits, which directly link Supreme Court vacancies to presidential elections, is like saying: “We can’t win as many presidential elections as our opponents, so we would rather take our chances with random deaths and tactically-timed retirements.”

Supreme Court justices are judges, not monarchs. Eighteen years on the Court is enough. 

Mark Weston has been a lawyer for ABC Television and a journalist for ABC News, and has written articles for The New York Times, The Washington Post and the Los Angeles Times. He is the author of The Runner-Up Presidency, The Elections that Defied America’s Popular Will. (Lyons Press, 2016). His other books include Prophets and Princes – Saudi Arabia from Muhammad to the Present, (2008) and The Land and People of Pakistan (1992). He lives in Sarasota, Florida.