Supreme Court Justices are Human. Give Them Terms.

In the United States, we hold elections for federal offices every two years. This is because, in a liberal society, power should not be a lifetime promise or right; it should be a tool, to be used responsibly. Without accountability, the guarantee of that becomes impossible.

And yet the United States―almost uniquely―makes one of the most powerful positions in its government, that of Supreme Court Justice, a lifetime appointment.

To be sure, there are good reasons to having lifelong terms. Because justices only ever leave the court by retiring or passing away, Supreme Court seats have to be filled relatively rarely, which is good for two reasons. Firstly, Supreme Court appointments are a very important matter with which the Senate usually wants to deal with quickly, as the processes surrounding them can slow down or stop other work in the Senate―since 1975, the average time between the nomination of and the final vote on a Supreme Court nominee has been just over 68 days. And secondly, the Supreme Court benefits from being a pretty stable institution, changing gradually over time. Were the Supreme Court to change with the wind, the legal landscape of the country would change frequently and wildly. It would be difficult for even the most knowledgeable of legal experts to keep track of what exactly the law was, let alone the regular government officers who have to abide by it. It would be a chaotic disaster.

Furthermore, some amount of unaccountability, despite that word’s illiberal connotation, is a desirable trait in a court; owing in part to its lifetime appointments, the Supreme Court is not subject to the ever-changing political whims of the country nearly as much as the rest of the government. While this can put a damper on rapid socio-economic reform, it can also stop nefarious populist trends in their tracks and make the graph of the country’s progress over time less oscillatory, if perhaps more shallow.

However, the Supreme Court’s lifetime appointments’ benefits are outweighed by their downside. First of all, people change, sometimes for the worse. No one stays the same person their entire life, and a person could be an excellent potential Supreme Court Justice at the time of their appointment and then become a bad one with the passage of time. Take, for instance, Justice Stephen Johnson Field, who insisted on staying on the court even after he became senile simply because he wanted to break John Marshall’s record. While this danger is somewhat prevented by the existence of impeachment―one hopes, for instance, that a justice who started a neo-Nazi blog would be impeached immediately―it’s not eliminated. Thus, the creation of a periodic but rare procedure to remove justices from the court without the difficulty of impeachment would be a boon.

Secondly, life appointments discourage presidents from making older Supreme Court appointments. In the current system, presidents know that the amount of time that their appointments will last equals the amount of time left in their appointee’s (working) life; going on every Supreme Court vacancy in this century, it is until the appointee is about 80. Because presidents understandably want to get the most mileage possible out of their Supreme Court nominations, this incentivizes them to make younger appointments and, conversely, avoid older appointments.

To be clear, there’s nothing inherently wrong with younger appointments and nothing inherently great about older appointments. The problem is that the current system tips the scale in the former’s favor; a president faced with a decision between an extremely well-qualified 60-year-old and a slightly less qualified 50-year-old will be inclined to pick the 50-year-old, who has 10 more potential years of work than the 60-year-old. But if both had a guaranteed expiration date, the president could feel free to pick the better qualified 60-year-old.

Lastly, while the Supreme Court shouldn’t be exactly aligned with the spirit of the people at all times―there’s a reason Supreme Court cases aren’t decided by referendum. It also shouldn’t be as removed from that spirit as it is under the current system. Lifelong appointments create a Court whose responsiveness to popular will is much more suited to the 18th century’s republican zeitgeist than to today’s more democratic one.

With the aim of remedying these issues while also preserving what’s good about the current system, I propose giving Supreme Court Justices nonrenewable 15-year terms. Nonrenewable just means that Supreme Court Justices would be limited to one term; we don’t want justices running for their position as they reach the end of their first 15 years. 15 years is a good number because it’s a long time―Senate terms are only six years―that isn’t a multiple of four, the length of a president’s term. As a result, a firm single-party hold on Supreme Court seats seems unlikely.

Under this system, a president could comfortably pick a justice as old as 65―the age of the oldest appointee, Horace Lurton―without worrying that in doing so, they would be sacrificing the future of the Court. If after 15 years, a justice wanted to stay on the court and the president agreed, the justice could be re-evaluated by the Senate to make sure they were still a good fit. And the Court would ultimately be more responsive to popular will while, with 15-year terms, never becoming its ever-changing embodiment.

The United States’s government was designed to be changed. The Constitution’s framers knew some parts of their document would eventually grow outdated, so they created an amendment process. For 230 years, this fundamental aspect of the Court has remained unchanged. It’s high time to change that.