AMA: I'm Alicia Bannon, director of the Judiciary Program at the Brennan Center. Ask me anything about how Supreme Court term limits would work and how we can fix the broken Court.

How can you say term limits are the solution when a lot of the court has been appointed in the last two admins? Obviously this is about politics to you when you don’t mention the Sotomayor ethics scandal that also is a big deal as Alito and Thomas. The court should not be ruling in line with public sentiment, but in line with the constitution and as statutes provide. I guess my question is why are you a partisan hack when real SCOTUS reform is non partisan and worth discussing?

18 years is idiotic considering presidential terms are 4 years, atleast make is divisible by 4 so it aligns with president turn over. Also this isn’t even starting with the fact that term limits would take a constitutional amendment.

Fairness is at the heart of this reform, not politics. Under the system of term limits and regularizing appointments that we are proposing, each president would receive two - and no more than two - appointments to the Court per presidential term. In this way, the reform benefits neither political party. It also removes much of the partisan gamesmanship that has characterized Supreme Court confirmations during previous administrations. Justices would no longer be able to tap their own successors through strategic retirements, and neither party would benefit from the untimely death of justices while in office. Critically, implementing term limits would not impact the justices’ decisional independence. Once on the bench, the justices would be free to rule however they see fit, just as they can today.

Staggered 18-year terms would bring regular turnover to the bench, resulting in a court that better reflects public values.

Better reflects all public values, or just the ones that aren't in violation of the Constitution? Better reflects a national gestalt, which it then imposes on every level of government everywhere, or takes seriously the stark differences in "public values" state-by-state or even urban-versus-rural, and has more deference towards federalism? Do you think it's even possible to discover and articulate a consistent and coherent "public value" on such a question that the Court would/should/could then "better reflect?"

Seems to me like that inches towards the problem of law being a profession, where actually knowing specialized things and applying specialized skills/knowledge necessarily alienates its processes and outcomes from "the public."

I’d say that the Supreme Court has a democratic legitimacy problem. To be clear, justices aren’t supposed to be following the political winds when considering cases – and sometimes what’s right isn’t what’s politically popular, especially when it comes to protecting rights. That’s why judges are often touted as a countermajoritarian force, and it’s why it’s important that any reform to the Supreme Court protect judicial independence. At the same time, the justices aren’t supposed to operate outside of our political system either. In some countries, judging is a civil service track; judges take exams and win positions based on their performance. But the United States bakes politics into the selection of justices, who are nominated by the president and confirmed by the Senate. The idea is that judging isn’t actually just calling balls and strikes – judges have different philosophies and values that impact how they approach legal questions – and so it’s important to have a system that gives voice to Americans’ views about those values and the direction of the Court.

But the Court has largely lost its democratic link to the American public. For example, Republicans won four out of the last nine presidential elections (and won the popular vote only twice), but they’ve appointed six justices to lock in a conservative supermajority on the Court. The public also has little opportunity to shape the future direction of the Court. Justices today stay on the bench more than a decade longer than they used to on average. Today, a 30-year-old has seen 10 new justices join the Court over their lifetime. Sixty years ago, a person of the same age would have seen twice as many.

Are you proposing a constitutional amendment for SCOTUS term limits?

Term limits can be adopted by constitutional amendment or by statute. Here’s how this would work: After an 18-year active phase, justices would then move to a senior phase for the rest of their time on the bench. As senior justices, they would do things like hear cases on the lower federal courts and step in to hear cases when the Supreme Court is short staffed. This is consistent with the Constitution because the justices are still holding the office of a Supreme Court justice as senior justices. And it’s similar to the senior judge framework that’s been in place for more than a century in the lower federal courts and was applied to the justices in 1937.

That doesn’t seem to fit with article 3 section 1. Only one Supreme Court and judges hold their offices during good behavior. There doesn’t seem to be any room for allowing requiring judges to change office for any reason other that lack of good behavior. Moving from the SCOTUS to another court would be removing the judge from their office. I would wager a lot on any such statute not winning a challenge in court.

Article III Section 1’s Good Behavior Clause applies to both Supreme Court justices and to the judges of the lower federal courts. Senior status already exists in the federal court system, and past Supreme Court justices who we consider to have “retired” from the court – like Justice Sandra Day O’Connor – have continued to hear cases in the lower federal courts while in this status. That's because senior judges (and justices) continue to hold their judicial offices -- as required by Article III. The term limits proposal at its most basic sets a schedule for when that transition to senior status will happen, rather than leaving it up to each justice to decide. However, Congress could also specify certain additional duties for Supreme Court justices in senior status, like filling in when an active justice isn’t able to sit on a particular Supreme Court case for whatever reason, or even being part of a panel that reviews ethics issues for the active justices.

Why 18 years?

Mathematically, if there are 18-year terms and a 9-justice court, then we can have a regular system where a new justice rotates into the Court every 2 years. That regular system is really important, because one of the problems we see now is that presidents have had really different imprints on the Court. President Trump appointed three justices in a 4-year term, while Presidents Clinton, George W. Bush, and Obama each appointed only 2 justices in 8 years. President Carter didn’t get any Supreme Court appointments at all! More generally, though, we think something in the vicinity of 18 years is the right length – long enough for a justice to have an impact and become experienced at the job, and also not so long that an individual justice holds the seat for an entire generation. It is also more like the way the Supreme Court operated for most of the nation’s history; for the first 180 years of U.S. history, justices served for an average of 15 years. It’s only recently that justices’ terms have ballooned – several current justices are on track to serve through 9 presidential terms. 18-year terms brings the court back to the way it has historically worked.

What are the second order effects of this proposed change that concern you the most?

Term limits for Supreme Court justices would be a transformational reform. No one should have power for this long, and term limits would better align term lengths with historical norms and strengthen the democratic link between the Court and the public. One thing that will be important to address is what the justices do after their term ends. We need strong ethics safeguards to make sure that justices aren’t focused on their next job while deciding cases.

Gotta be honest... I don't think you answered my question- this change would create second order changes to our election cycle, for one, and I would imagine would change the 'rhythm' or 'strategy' of how plaintiffs bring cases to the court... what are your concerns regarding these sorts of second order effects?

It sounds like you’re asking about the ways in which term limits will impact presidential campaigns and litigation strategy. With respect to the first, candidates already do campaign about Supreme Court nominations. But under a system of term limits and regularized appointments, no president will be in a position to lock in power on the Court for multiple generations. This will reduce the stakes of any individual vacancy on the Court. For these reasons, we believe that this reform will help turn down the temperature on judicial politics.

With respect to litigation, litigants will certainly continue to pay attention to the composition of the Court (as they do already). Looking forward, the makeup of the Court will be tied to the results of future national elections.

Why choose term limits reform now? Why not court packing? Can you explain your strategy?

Term limits gets at the root cause of many of the problems we see with today’s Supreme Court. The Court has too much power, the length of time justices sit on the bench is out of line with global and historical norms, and our confirmation process is broken. Introducing term limits (along with regular appointments – so each president gets the same number of appointments per four-year term) puts the Court on a more sustainable path. It’s also really popular – more than two thirds of Americans (and a majority of Republicans) support term limits.

Are term limits a sufficient remedy when the institutional practices of the Senate already allow disproportionate influence over the confirmation process?

The Senate’s role in the Supreme Court confirmation process is constitutionally mandated, so the possibility of Senate obstruction looms large. But there are good reasons to believe that term limits and a regularized appointment system would help discourage partisan gamesmanship in the Senate. First, term limits reform would reduce the political “benefits” of Senate obstruction because Supreme Court seats would no longer offer the promise of a multigenerational imprint on the Court. Second, obstruction during periods of divided government, where one party has the presidency and the other has a majority in the Senate, would become increasingly politically costly as the public would come to expect that each president should be able to fill two Supreme Court seats per term. And in the event that senators did chart a course for four years of obstruction on a purely partisan basis, voters would have an opportunity to voice their opposition during the midterms. Finally, Congress could also accompany this reform with “fast-track” statutory mechanisms to help ensure that nominees receive an up-or-down vote on the Senate floor.

Hi Alicia! Term limits sound great -- but you write how recent events "highlight the lack of accountability and basic checks and balances" at the US Supreme Court. So realistically, what has to be the process for establishing ANY checks and balances like term limits or of any other kind? Where does the power here lie? Will entirely new legislation have to be written and passed?

You would need to pass a new law to introduce term limits for Supreme Court justices, and this is something that’s in Congress’s power to do. Throughout our history Congress has made lots of changes to the Court – changing its size, jurisdiction, and even making the justices sit on lower courts (they called it “riding circuit”). We need Congress to prioritize court reform to respond to current challenges.

Do you think that 9 seats is the right number for the Court, or should it be more (or less)?

I don’t think there is necessarily a “right” number of seats - we see high courts in the states and in other countries that have varying numbers, and our own U.S. Supreme Court has had different numbers of justices over time, ranging between 5 and 10. Among the world’s most populous democracies, the United States is one of only a few countries with a high court of general jurisdiction composed of fewer than 11 justices. Of course there need to be enough justices to do the work of the court, and to bring a diversity of perspectives and experiences to the decisionmaking process. Those dynamics make for better decisions. What’s most important is the way the justices work together to play their important role in our democracy.

How does a justice become a senior justice? What power does a senior justice have?

Under a term limits system, a justice would become a senior justice automatically after 18 years. There are different possibilities for the powers that a senior justice could have, and generally they’d be pretty important. For one, they could fill in for active justices in cases where the active justices might not be able to participate - if they are ill, or if they need to recuse from the case for ethics reasons, for example. For another, they could do as “retired” justices like Sandra Day O’Connor and David Souter did, and hear cases on lower federal courts to contribute to the work of those courts. Finally, they could have an important role in administration of the courts; federal judges do a lot of work in addition to the cases they hear in order to make sure that courts are able to hear all kinds of cases fairly and efficiently (like creating procedural rules), and the senior justices could play a big role in helping guide those efforts. They could even help advise their active justice colleagues on ethics issues - something active justices certainly need!

"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour" - that's directly from the Constitution. Where in the Constitution does Congress have the power to remove a justice from his/her office absent a lack of good behavior? I've read it and don't see it anywhere.

A key point to understand about this reform is that it isn’t removing a justice from office – rather, justices would serve in two phases, an active phase and a senior phase, and hold their office throughout. This is similar to the senior judge system that already exists (and already applies to justices) – the difference is that senior status would happen according to a set schedule. The Supreme Court has already held (in Booth v. United States) that Congress has the power to “lighten judicial duties.” It’s also held (in Stuart v Laird) that Congress can require justices to serve on lower courts. To be clear, Congress can’t remove Supreme Court justices from their jobs except by impeaching them – but a Supreme Court justice doesn’t stop being a justice just because they aren’t hearing cases on the active docket. Justices who take “senior status” continue to hear cases in other courts and can do other work for the judiciary – if they were no longer holding their office they wouldn’t be able to do that. And providing a schedule for when justices make the shift to senior status, rather than leaving it up to the individual justice to decide when to do this, is well within the realm of the kinds of powers that the Constitution gives to Congress when it comes to the Supreme Court. This is how checks and balances work.

What would happen if/when justices leave before 18 years (for personal reasons, illness, death, etc)? Would you get a situation where eventually multiple 18 year terms start at the same time? Or would someone potentially have a very short term?

How would you ensure that justices aren't incentivized/influenced based on their next job after their term ends?

One of the big advantages of term limits and regularized appointments is that it creates predictability in the event of a death or premature departure by a justice from the bench. This shouldn’t come up very often since the justices would be in active service for only 18 years, and it has been more than half a century since a justice served for less than 18 years. But under such circumstances the most recently elevated “senior” justice would step in until there is a scheduled vacancy.

In terms of avoiding bad incentives, it would be important to have strong ethics safeguards in place, to ensure that justices aren’t job hunting while still on the bench. This could include a “cooling off” period and strong recusal requirements.

You mentioned ethics reform. Can you say more about this? How can we hold justices accountable? And who in government should be responsible for doing this?

The justices of the U.S. Supreme Court are the only judges in the country who don’t have to adhere to a code of conduct. That’s not the only thing that leads to ethical behavior or allows for accountability, but it’s an indication of where we’re starting from - by and large, the justices police themselves on ethics issues, and no one can really second-guess them in any official way. I think most people realize this isn’t a workable system, and the cascade of ethics scandals that we’ve seen reporting on over the past few months (and indeed years) is a testimony to that. Right now, the only way to hold justices accountable is for the Congress to impeach them (unless they are convicted of a crime, but that is probably outside the realm of what most people think about when they think about ethics and accountability). But there is a lot that Congress can and should do to strengthen ethics safeguards, including requiring the Court to adopt a code of conduct. One of my colleagues recently wrote a piece about Congress’s powers here: https://www.brennancenter.org/our-work/analysis-opinion/congress-has-authority-regulate-supreme-court-ethics-and-duty

Maybe off topic -- but what do you think is a better system: the people electing judges or judges getting appointed?

There are advantages and disadvantages – and competing values – tied up in every judicial selection system. 38 states use elections as part of their system for choosing state supreme court justices, so we have a lot of evidence and experience to draw from in thinking about the tradeoffs. At least when it comes to state courts, my view is that the best system is a publicly accountable appointment process – where a diverse, bipartisan, judicial nominating commission vets judicial candidates and presents a binding shortlist to the governor. Note that this is not the system we have for federal judges! But I’d say even more important than election vs. appointment is that judges should have a lengthy single term, rather than standing for reelection or reappointment – there is a ton of evidence that threats to judicial independence are most pronounced during reselection. I wrote a report about this issue if you’d like to read more: https://www.brennancenter.org/our-work/policy-solutions/choosing-state-judges-plan-reform

A major reason for the current lopsidedness of the Court is that Obama's nomination of Merrick Garland lapsed. It seems nonsensical that if the constitution requires the senate's advice and consent, that they can simply refuse to hold a hearing and a vote. What would have to change in order that, if the senate fails to provide any Advice or vote on Consent, it would mean that the appointment would go through?

This would require a constitutional amendment, but we can get part of the way there by passing fast track-legislation that would encourage an up-or-down vote on Supreme Court nominees. Fast-track legislation is a common vehicle that Congress uses to prevent certain measures from being indefinitely obstructed. It uses methods like automatic discharge from committee or allowing for a privileged motion to discharge from committee if a measure is not reported out after a fixed period, granting the measure privileged access on the floor of the House or Senate, and setting limits on time for debate. Congress has a long history of passing such procedures to speed up recurring must-pass legislation, such as trade agreements, budgets, and military base Closures. To avoid potential constitutional objections, fast-track procedures typically include a provision that they can be changed “at any time, in the same manner and to the same extent” as a chamber’s internal rules. Thus, in principle the Senate could override this fast-track system by changing its rules, but in practice fast-track legislation has often established procedural norms that have been hard to override and served as a bulwark against inaction.

People are so exhausted with this court. It seems like every day there is a new scandal and nothing is ever done about it. Their rulings are awful for democracy. Seriously, is there anything that the people can do? What power do we have?

I think we have more power than we may think. In lots of areas of life we know that when people think - or know - that no one is watching, they aren’t going to be on their best behavior. So when people pay attention to the behavior of justices on the Supreme Court, and about the direction that the Court is taking in its decisions, that changes the environment that the justices are operating in. Also, members of Congress haven’t always heard the message that court reform should be a priority. Public pressure could be a big deal in making court reforms like term limits a reality.