How can term limits be set for supreme court justices
Executive summary
Two routes exist to impose term limits on U.S. Supreme Court justices: Congress can pass statutory changes that limit active-service participation while preserving life tenure in form, or the nation can pursue a constitutional amendment that explicitly alters length-of-service rules — each approach carries legal risk and political hurdles [1] [2]. Legislative proposals in recent years have coalesced around an 18-year active-service model with biennial appointments and a senior-justice status for life, but scholars dispute whether statutory fixes survive the Constitution’s “good behaviour” and appointments language [3] [4] [2].
1. Statute-first: the design most advocates are pitching
Reform bills introduced in Congress would set an 18-year active term and regularize appointments so a new justice arrives every two years, with justices after 18 years assuming “senior” status and remaining compensated members of the federal judiciary [3] [5] [6]. Variants — such as the TERM Act and the Whitehouse-led Biennial Appointments and Term Limits Act — keep life-tenure protections formally intact by shifting post‑term duties to lower-court work or limited original-jurisdiction cases, rather than stripping the office outright [7] [3] [4]. The text of H.R.1074 shows how Congress might structure nominations, timing, and presumptive Senate consent windows to operationalize regular appointments [8].
2. Constitutional amendment: the clean but steep climb
A constitutional amendment would remove the most serious legal doubts by rewriting the terms of judicial service in Article III, but it requires two‑thirds majorities in both chambers and ratification by three‑quarters of the states — a politically remote path [1]. Senators Manchin and Welch have introduced a joint resolution proposing an 18‑year amendment, signaling the amendment path is being used as a pressure valve or public debate tool even if prospects are slim [9].
3. The legal fault lines that will decide the fight
Scholars and judges point to the Good Behavior Clause — “shall hold their Offices during good Behaviour” — and the Appointments Clause as sources of constitutional friction for statutory term limits; some argue Congress can reassign duties while preserving the office, others say this undermines life tenure and would require amendment [2] [1] [6]. Academic working groups and the Brennan Center argue implementation through case-assignment mechanics (active vs. senior participation) could respect Article III while achieving rotation, but critics including conservative legal commentators warn statutory maneuvers would be vulnerable to Supreme Court review [4] [10] [11].
4. Political strategy and procedural levers in Congress
Legislation on term limits has paired rule design (18 years, two‑year cadence) with safeguards intended to reduce partisan stakes of any single appointment and to preserve compensation and status for senior justices, seeking to win broader political support [5] [3] [12]. Bills like H.R.1074 also contemplate procedural devices — e.g., deeming the Senate to have waived advice-and-consent after 120 days — that would force regularization but raise separation‑of‑powers debates and likely provoke litigation [8].
5. Pros, cons, and the political calculus
Proponents argue term limits would depoliticize confirmations, ensure predictable geographic and demographic rotation, and increase public confidence by avoiding multi-decade imbalances in appointments from one presidency [5] [12] [4]. Opponents counter that statutory term limits threaten judicial independence, could be struck down as unconstitutional, and risk unintended effects on lower courts and institutional norms — an array of concerns captured in legal commentary and media analysis [10] [2] [6].
6. Bottom line: two-pronged path and likely reality
Setting term limits can be pursued via statute that reassigns duties after a fixed period or via the constitutional amendment route that would plainly authorize limits; current congressional bills and advocacy center on an 18‑year active-service model with senior status afterward, but the statutory path faces credible constitutional challenge while the amendment path faces steep political barriers [3] [4] [1]. Given those constraints, the immediate practical battleground is Congress and the courts: statutes will be tested and debated publicly, and an amendment remains the definitive but difficult solution if reformers seek legal permanence [9] [2].