Course correction is urgently needed
In 2022, a group of legal experts, including federal judges of varying ideologies, explained: “[T]he rule of law largely depends on the willingness of ordinary people, as well as political actors, to abide by court rulings.” There are significant signs that the people’s willingness to do so is rapidly decreasing, as trust in the judiciary reaches historic lows.
While the allegations facing Justice Thomas demand immediate investigation, the closing of ranks evidenced by the justices’ recent statement is deeply problematic. It underscores the institution’s resistance to seeing itself as a coequal branch of government accountable to the people. And it also highlights why—even if the Supreme Court itself were to take modest steps to appease public concerns—Congress must act on its constitutional power and duty to improve the court overall.
Reinvigorating efforts to establish term limits is one such key step. Doing so will strengthen the rule of law, while also helping to address ethics concerns.
The problems of the Supreme Court are not limited to one justice or ideology
Before discussing term limits directly, it is worth highlighting that justices of all ideological stripes have acted in ways damaging to the court, contributing to the Supreme Court’s current untenable position in the eyes of the public. Some prominent conservatives, in attempts to defend Justice Thomas, are attributing the current attention on the Supreme Court to partisan anger over recent decisions. They note that justices aligned with more left-leaning ideologies have had ethics lapses in the past that have gone unaddressed.
While Justice Thomas’ actions have garnered public outcry for good reason and deserve investigation, these commentators are correct that ethics issues plague the entire court. It is unnecessary, and even counterproductive, to focus on arguing that justices of particular ideologies are better or worse with regard to ethics. The issue is the lack of clear and transparent ethics guidelines against which all on the highest court can be held.
Congress must act on its constitutional power and duty to improve the court overall.
Recent examples illustrate this point. Too many current and recent members of the Supreme Court across the ideological spectrum have refused—sometimes repeatedly—to recuse themselves in cases in which they or their spouses had financial interest in the companies appearing before them. Justices often neglect to disclose trips paid for by outside entities and align themselves with ideological organizations designed to influence the judiciary and practice of law. Even when no improper influence or specific wrongdoing occurs, the “crime” in these actions is the appearance of impropriety that can be interpreted to carry nearly the same harm as actual corruption.
Judicial heroes are not exempt from criticism
Some of the most celebrated justices on both sides of the ideological spectrum have acted in ways that have raised legitimate concerns. For instance, Justices Antonin Scalia and Ruth Bader Ginsburg enjoyed lavish vacations financed by large interest groups and billionaires with business before the court. They also both had a history of making politically tinged public remarks.
Perhaps reflecting the same stonewalling the Supreme Court is exhibiting today, Justice Ginsburg also once commented that suggestions to create an oversight office focused on the judiciary reminded her of Stalinism and said that lawyers should stand up for the justices when the court’s behavior is questioned by Congress.
This historical pattern crystallizes the need for intervention to ensure public trust in the judiciary doesn’t continue its rapid dissent.
Term limits will ensure the court better reflects American values, thereby bolstering trust in its decisions
Throughout American history, the average term of a Supreme Court justice has been 16 years. In contrast, the five most recent justices to leave the bench—through either retirement or death—served an average of almost 27 years.
Principles for term limits
While a variety of details are worthy of debate, the Center for American Progress believes any meaningful term-limits proposal should be based around the following two principles:
- An 18-year limit, which ensures that each presidential term brings two vacancies on the court.
- A mechanism to ensure that Americans will benefit from term limits as quickly as possible, rather than waiting out departures for all the current justices.
These longer terms contribute to less-regular turnover. In the past 30 years, the Supreme Court has seen only 10 new confirmations. That number rises to 13 in the 30 years prior to Justice Ginsburg joining the court in 1993, while 21 justices were confirmed from the start of 1930 through 1959 and 17 were confirmed from the start of 1900 through 1929.
This lack of vacancies not only means that the Supreme Court will often be made up of individuals who are far removed from the insights gained through practicing law regarding the legal system and needs of clients,* but it also has the potential to worsen the disconnect between the values of the American people and the nation’s highest court.
The Center for American Progress has previously summarized why this is the case:
[T]here is a deepening disconnect between the makeup of the Court and the interests of the Americans reflected in their chosen governmental representatives. Regardless of what one thinks about President Trump and his appointees to the bench, for example, it should be common sense that a one-term president should not be able to appoint more justices than any of the three two-term presidents who preceded him—but that is precisely the current state of affairs.
There are plenty more examples of how the makeup of the bench is untethered to the will of the people expressed through presidential election.
Indeed, over the past 60 years, one-term presidents have averaged approximately the same number of appointees as two-term presidents. As an extreme example, President Gerald Ford—who was never elected president himself but rather served out the remainder of President Richard Nixon’s second term—nominated a justice to the Supreme Court, while the elected President Jimmy Carter did not have even the opportunity to do the same.
While a fair-minded judiciary is essential to the rule of law, it makes sense to expect that presidents would nominate individuals who have judicial philosophies more aligned with their own ideologies. And, naturally, those individuals’ philosophies will inform their votes and opinions as a justice.
As a result, when chance dictates whether a president will have the ability to appoint a justice or multiple justices—with long gaps between vacancies only worsening over the next decades if the status quo persists—the connection between the American people and the rule of law that is so critical will be weakened.
Term limits can help bolster ethics standards
Term limits could bring many additional benefits, including strengthening ethics standards for the court. To start, term limits would help avoid any justice acting as if they are above the law. Justices are human. And many humans, when given lifetime appointments that lack any real overnight, might see little downside in flouting unenforced ethics rules.
More directly, as some experts have suggested, after justices’ 18 years of hearing cases full time, they could then transfer into a type of modified senior status on the bench and take on new critical duties to serve the judiciary—such as those that could help strengthen accountability efforts overall.
Ensuring a working court
In addition to limiting the time justices hear cases full time before taking on other duties, there are a variety of other reforms that could help ensure the Supreme Court is more in touch with and aware of the needs of the public and the law itself, as well as assure the public that the job of a justice is one committed to service of the law.
For example, justices currently get a lengthy three-month recess that many have spent traveling and collecting significant paychecks while teaching in countries such as Italy. It is fair to observe that, given Supreme Court justices are public servants, perhaps at least some of this time could be spent in a different manner. In fact, long before he joined the bench, Chief Justice John Roberts once commented that “only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”
At least some of that time, justices could be required to once again “ride circuit” and hear cases at the lower court level or even hear “certified questions,” which are essentially requests by lower courts for the Supreme Court to provide guidance on complex or confusing legal matters. (The Supreme Court has largely abandoned agreeing to do so.) Such reforms, or those of a similar vein, would expose the justices to a wider variety of matters without interfering with their work when the court is in session.
After 18 years of actively hearing cases, for example, justices could then oversee ethics complaints brought against the justices actively hearing cases and issue judgments in a transparent fashion.
In addition, term limits could strengthen recusal procedures. In the statement on ethics the Supreme Court jointly signed, the justices claimed that due to the court’s inability to find a replacement judge, “a Justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy.” While the merits of this claim are separately worth questioning, a deeper bench of former justices serving in senior status, ready to step in to hear cases when recusals are necessary or advisable, would solve any logistical issues in that regard.
Term limits could bring many additional benefits, including strengthening ethics standards for the court.
In considering the practicality of these proposals, it may be helpful to note that continued service after leaving the Supreme Court would not be a novel concept for justices. As just one example, Justice David Souter continues to hear cases at the circuit court level after he stepped down from the Supreme Court following 19 years of service.
A system of this sort is certainly not the only way to require justices to follow basic ethics standards, but it is an example of how regular turnover on the court could help support a variety of other needed judicial reforms.
Conclusion: Accountability will strengthen the court’s independence and legitimacy
The two other branches of government have a duty to recognize and rectify the threat a lack of public trust in the court poses. Congress has the strongest ability to do so through its historic, long-recognized power to shape the Supreme Court’s operations.
While the U.S. Constitution vested judicial power in the Supreme Court, Congress sustains the existence of the Supreme Court through the appropriations process. Without Congress’ blessing, there would not be Supreme Court clerks or even computers. And while it has largely abandoned its right to assert itself in this manner, Congress has significant say over the court’s operation. For instance, Congress can require that the Supreme Court hear certain cases. Through most of American history, in fact, the majority of the court’s docket was made up of cases that Congress mandated that it hear.
Action to improve the judiciary is necessary, and Congress must commit itself to doing what it can to safeguard the court’s critical role in our democracy.
This power should not be used in a manner to further politicize and damage public trust in the court. And indeed, the Supreme Court will likely be asked to rule on what actions Congress takes are proper—a check on congressional authority the court shouldn’t abuse either.
But action to improve the judiciary is necessary, and Congress must commit itself to doing what it can to safeguard the court’s critical role in our democracy.
*Author’s note: The author recognizes that being an attorney is not a requirement to become a federal judge; regardless, the divide in time between on-the-ground professional experience and time spent as a judge would remain.