Terms Limits for the Supreme Court?


image001 (2)According to a new initiative, Justice Ruth Bader Ginsburg has overstayed her welcome. The “Come to Terms” Initiative urges any new Supreme Court nominee to pledge to serve a single, standard term of 18 years rather than enjoy lifetime appointment.

Under the Article III of the U.S. Constitution, Supreme Court justices “shall hold their Offices during good Behavior.” This means that the Justices hold office as long as they choose and can only be removed from office by impeachment. The only Justice to face impeachment was Associate Justice Samuel Chase in 1805.

As discussed in an article published in Harvard Journal of Law and Public Policy, the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years. For members of the Court who have retired since 1970, the average time on the bench has nearly doubled to 26.1 years.

Because Americans live longer, lifetime appointment now guarantees a much longer tenure on the Court than when the Constitution was first drafted. There are also fewer vacancies, which significantly raises the stakes when it comes to appointing a new Supreme Court Justice.

But are term limits the answer?

The Come to Terms initiative is sponsored by Fix the Court, a bi-partisan, grass-roots organization devoted to increasing the Supreme Court’s transparency and accountability. “The current system of lifetime appointments and sporadic retirements is broken and a far cry from its original intent,” said Gabe Roth, the organization’s executive director.

“We can and must expect better from the Supreme Court,” Chemerinsky stated. “Lifetime appointments lead to too much power exercised by a single person for too long a period of time. Clarence Thomas was 43 years old when he was confirmed for the Supreme Court in 1991. If he remains on the Court until he is 90, the age at which Justice [John Paul] Stevens retired, he will sit on the Supreme Court for 47 years.”

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.