Biden’s Term Limits Bring the Supreme Court Back to Its Origins

This week, President Joe Biden announced his support for a statute that would regularize US Supreme Court appointments and limit justices to 18 years of actively hearing cases. Each president would be guaranteed two Supreme Court picks, and four if they are elected for a second term.

The last two years, I worked on the issue of 18-year term limits with a bipartisan group of 11 scholars, lawyers, and judges convened by the American Academy of Arts and Science, and issued recommendations. Here’s what you need to know about Biden’s proposal.

Capping the number of years a Supreme Court justice can hear cases has broad and bipartisan support. The idea of term limits (really, a single limited term) for Supreme Court justices is popular. Just last week, YouGov reported that 89% of Democrats and 56% of Republicans support a cap on the number of years a Supreme Court justice can serve.

Turns out, people across the political spectrum like the idea of limiting the power of justices who, for reasons I outlined in my 2020 congressional testimony, have more power over more of American politics today than they have ever had.

Some prominent Republicans object to Biden’s reform, but others have supported term limits as a way of saving the court from partisan politics run amok.

Eighteen-year terms bring the Supreme Court back in line with the first 200 years of historical practice and precedent. Prominent legal conservatives and originalists are among the vast majority of Americans in supporting 18-year term limits. That’s because this reform is consistent with the history and tradition of Supreme Court practice.

As conservative scholar Steven Calabresi and his co-author wrote in 2006, moving to a system of 18-year terms “would restore the norms in this country that prevailed on the Court between 1789 and 1970, when vacancies occurred about once every two years, and Justices served an average of 14.9 years on the Court.”

Supreme Court justices are serving longer and longer, but this is a relatively recent trend. Justices who have left the bench since 1990 served an average of 26.3 years, based on 2021 research, almost double what Calabresi reports from the first two centuries of Supreme Court practice. When the Framers of the Constitution advocated for lifetime appointments (“during good behavior”), the life expectancy of a white male was 44 years.

When coupled with the rise of strategic retirements—that is, a justice choosing to retire under a same party or ideologically compatible president—these dynamics raise the stakes of each precious, unpredictable vacancy and give too much power to a few people to determine the direction of American law.

To put a point on it, Biden’s term limit proposal isn’t radical; it’s restorative. It simply puts us back in line with Supreme Court history and tradition, and our elected representatives.

Regularizing appointments would help reduce the partisan temperature around filling Supreme Court vacancies. Strategic retirements, constitutional hardball, and high-stakes, knock-down, drag out fights over Supreme Court vacancies are recent phenomena, a product of rising partisan polarization spilling over into the courts.

And political science tells us these partisan spectacles erode trust in our nation’s highest court. It is no wonder the Supreme Court is currently suffering from its lowest levels of trust and approval ever recorded, based on various polls.

Biden’s 18-year term limit proposal is a moderate, common-sense reform that aims to save the Supreme Court by realigning it with its own history, norms, and tradition.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Amanda Hollis-Brusky is professor of politics at Pomona College, and was a member of the American Academy of Arts and Sciences’ US Supreme Court Working Group.

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