Among President Joe Biden’s three proposed Supreme Court reforms is term limits for justices. Biden wrote that he supports a system in which the president would appoint a justice every two years to spend 18 years in “active service” on the court.
The other two measures he mentioned are a constitutional amendment removing criminal immunity for presidents and legislation for an enforceable Supreme Court ethics code. The president’s Washington Post op-ed and White House fact sheet Monday are more ambiguous about the mechanism for term limits — that is, whether they’d come by legislation or amendment. As precedent for judicial term limits, both his op-ed and fact sheet cite presidential term limits, which were achieved by constitutional amendment.
The amendment vs. legislation distinction matters because any term-limit legislation that passes could be challenged on the rationale that the Constitution provides life tenure for justices. Not that such a challenge would necessarily succeed, and that’s why legislation might not kick justices off the court exactly but rather adjust their duties so that they’re still judges under the Constitution. Biden’s reference to 18 years of “active service” may be an acknowledgment of that consideration.
So while any reforms are currently hypothetical with congressional Republicans opposing them, the success of term-limits legislation depends on its details (ethics code legislation would likewise face scrutiny from not only this Congress but also this Supreme Court, which jealously guards its power).
Given the potential constitutional hurdles and constraints, a term-limit amendment could provide more flexibility to bring the court in line with other major constitutional democracies where justices don’t serve for life. On that note, Biden is correct to point out Monday that term limits would, among other things, “reduce the chance that any single presidency radically alters the makeup of the court for generations to come.” And like with the immunity amendment proposal, there’s value in keeping the court in the national conversation among the three branches of government. But when it comes to implementing term limits, the details and mechanism by which that reform is attempted will matter. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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