7 Pros & Cons Of Supreme Court Justice Term Limits For You To Consider

by Joseph D. Lyons
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Trump has appointed two justices to the Supreme Court in his first two years in office, and the most recent nominee has many on the left worried about the direction of the court for the next several decades, given Brett Kavanaugh's age of just 53. His judicial philosophy, coupled with the years he's expected to stay on the bench has some worried to the point of suggesting term limits for Supreme Court justices. These are some pros and cons of that plan.

There are several different versions of the plan, but the general idea is that instead of each justice being nominated, confirmed, and appointed for life, there would be a maximum number of years that they can serve. One of the most discussed plans would be an 18-year upper limit. Then the judges would either be forced to retire or could serve as sort of senior judge filling in.

No current justices would be removed from the bench, and everything would be phased in gradually. Then every president would get to appoint one justice every two years, so that with each congressional election, a new group of senators would get to confirm the candidate or not.

That's quite different from the status quo, which is life in the office. Here are some pluses and minuses of changing things up.

PRO: Judges Of All Ages Might Be Nominated

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Right now most presidents nominate younger people to the Supreme Court so that they will stay on longer, have more influence, and ensure a liberal or conservative tilt to the court. With term limits, age wouldn't be such an issue and named justices could even have more experience.

As Chapman University's Dr. John Eastman tells Bustle it could change the profile of those named to the Court.

"It would decrease the incentive to name really young judges to the bench. If there was an 18-year term, you would get the same length of service from a 45-year-old as from a 60-year-old nominee," Eastman says.

CON: It Could Make SCOTUS More Political

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Columbia Law School Professor Thomas W. Merrill introduced this argument at a debate on the issue in 2014. He said term limits could change the way the public thinks about the court, making them connect it more with elections rather than seeing it as independent.

"Term limits would recast the role of the court to reflect presidents’ political views, not the more subtle role prescribed in the Constitution,” Merrill said.

PRO: No Problems With Mental "Decrepitude"

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Professor Eastman tells Bustle that "the major 'pro' is that it avoids judges working well into their 80s, beyond the point of being able to do the job."

The same argument was also made by Merrill. "Term limits would help usher out judges with mental decrepitude and loss of stamina," he said in his debate.

CON: More Money & Lack Of Independence

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According to an argument made by Eastman and Stephen Vladeck, a professor at the University of Texas, term limits could reduce independence and could allow for more money to influence the system. If judges were forced to retire when they're 60, there might be an incentive rule in favor of an industry or interest that would then hire them in their later years.

PRO: No Politically Motivated Retirements

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Justices wouldn't retire early just for political gain, where they wait for a president who is of their same political party, so that president can appoint someone who reflects their exact views.

Term limits would also mean older justices wouldn't have to work longer than they'd like, to wait a president out.

CON: It Doesn't Solve All The Problems

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According to Eastman, the real con of the SCOTUS term limits is that the biggest problem facing the court is not addressed.

"I think it does not target the real problem of judicial activism," Eastman tells Bustle. "One activist judge passing the baton to another does not create a check on judicial activism."

PRO: The Rulings Would Better Mirror The Public

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Term limits might bring the courts' opinions closer to the people. The Economist has suggested that such a step is needed. "Breathing new life into the nation’s highest court more often — even if it does not make the tribunal any less political —would bring more dynamism to the judiciary, jog the justices’ decision-making patterns and narrow, even if only slightly, the yawning gap between the enrobed ones and everyday citizen," the magazine wrote.

For example, two-thirds of Americans are opposed to overturning Roe v. Wade. That might make a difference if elections more regularly decided the court's make-up.