Supreme Court term limits?

I forget how I came across it, about a year ago I was engrossed in this article about term limits for the Supreme Court, “A Better System for Appointing Justices to the U.S. Supreme Court” by Andrew Johnson.

Now, most such pleas for this change usually are rooted in some thought that the court is too much of an activist court in a liberal or conservative direction.

This article is focused more on the fairness on how the opportunities for Presidents and Senates to nominate and approve Justices occur randomly. Nixon appointed five Justices in five years. Carter in his four years, none.

In the article Andrew proposes expanding the court to eleven members with terms of 22 years each, staggered so that one term will expire every two years.

He then wrestles with thoughts on how to go about handling vacancies that occur mid-term by death, resignation, or impeachment. Here he’s trying too hard to limit a president to two appointments per term.

Just allow the President one such appointment to fill one such vacancy per term. Any more, and the seat will remain vacant until a President reelected to another term, a new President is elected, or that Justice’s term expires naturally.

At first blush, I was confused why he’d expand the size of the Court. He gives no reason that I could find. Presumably, so that he could make the terms 22 years long. I prefer the idea of the longer term, as the shorter terms of other Supreme Court term limit proposals of 10 or 12 years to be too short to preserve the independence of the court.

Twenty-two years is longer than the historical average span of the lifetime terms of the past Supreme Court Justices, and longer than three of the currently serving Justices have served.

My proposal to have replacement appointments to complete a Justice’s term, limited to one per Presidential term would mean that the court would often be at less than full membership. To my thinking, this then justifies the expansion of the Court to eleven, as it won’t always be full.

I’d even suggest that vacancies that occur with less than four years remaining in that Justice’s term remain vacant until their natural expiration date. Such vacancies would be only two members, at most.

It could happen that by some tragedy, or other circumstances, the Supreme Court is substantially depleted. There then should be a provision for a President to be allowed a second vacancy appointment per term if the court membership drops below a certain level (say, six).

If enacted, these proposals would mean that in any term, a President would appoint no less than two, potentially three (or four in unusual circumstances) Justices. Even at that only two of them would be for a full term.

Presuming any constitutional amendment authorizing this codifies the maximum number of Justices, this would prevent any court packing plans, or it’s opposite number, the contracting of the size of the court to block a President from appointing any Justices (which has happened in our history).

I think there should be a proviso that the change would take effect only after an intervening Presidential election and inauguration. That should make passage a more practical matter.

With all that in mind, here’s the amendment I crafted to fit all those ideas:

Proposed Amendment

Section 1. Once adopted, this amendment shall take effect after an election and inauguration of a new President of the United States occur.

Section 2. Supreme Court Justices may only serve a single term in office of 22 years. Terms start on the first Monday in October. The maximum number of Justices on the court at any time is 11.

Section 3. A vacancy in the court caused by death, resignation, or impeachment can be replaced by a new Justice to serve in the remainder of that term, excepting if there are four or fewer years left in that Justice’s term, or another such vacancy has already been filled during the current presidential term.

Section 4. If the number of current Justices drops below six, one additional vacated seat may be filled during a presidential term.

Section 5. The incumbent Justice of the Supreme Court will have their remaining term defined as follows upon the first Monday in October following the adoption of this amendment:

  • The most senior Justice shall have 4 years remaining in their term
  • The 2nd most senior Justice shall have 6 years remaining in their term
  • The 3rd most senior Justice shall have 8 years remaining in their term
  • The 4th most senior Justice shall have 10 years remaining in their term
  • The 5th most senior Justice shall have 12 years remaining in their term
  • The 6th most senior Justice shall have 14 years remaining in their term
  • The 7th most senior Justice shall have 16 years remaining in their term
  • The 8th most senior Justice shall have 18 years remaining in their term
  • The 9th most senior Justice shall have 20 years remaining in their term
  • If any more Justices exist on the court, their terms are expired on that date but would be eligible to be reappointed to the court for another term when openings occur by a term expiring or a Justice‘s death, resignation, or impeachment.

Section 6. Once this amendment takes effect, a new Justice’s term begins on the first Monday in October.

Note that the reference to any more Justices beyond , are in case there is any intervening change in the increase of the court size before this amendment is adopted.

This would discourage, or at least remedy any last minute attempt to pack the courts before this amendment could be enacted. But at least be fair enough to the surplus justices, that a future president may re-nominate them.

This amendment would also set up the Justices terms that would be ending naturally, would only occur in non-election years. Making the process a little smoother.