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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: Term Limits for the United States Supreme Court

By Donald Scarinci, June 02 2022 12:01 am

Perhaps it is not surprising that a recent C-SPAN poll reveals that 68% of Americans support term limits for United States Supreme Court Justices.  While talk of term limits for elected officials has been part of the political debate for as long as I can remember, the public support for term limits on judges has never been this strong.

Our founding fathers considered imposing term limits on elected officials, although the proposal did not make it into the final draft of the U.S. Constitution. While hundreds of years have passed since its signing, much of the debate has remained the same. How do we balance the experience that comes with years in office against the need to infuse fresh blood? 

Terms Limits for Elected Officials

The Articles of Confederation included term limits that limited representatives to three terms in any six-year period. So, when framing the Constitution, the framers debated imposing similar term limits on members of Congress. 

In an anonymous anti-federalist essay, likely author Melancton Smith argued that, in the absence of term limits, lawmakers would become “inattentive to the public good, callous, selfish, and the fountain of corruption.” He added:  “Even good men in office, in time, imperceptibly lose sight of the people, and gradually fall into measures prejudicial to them.”

Meanwhile, other framers, such as James Madison, opposed term limits. Madison expressed concern that waves of inexperienced lawmakers would lead to corruption and ineffectiveness, arguing that the “greater the proportion of new members, and the less the information of the bulk of the members, the more apt will they be to fall into the snares that may be laid for them.” 

Ultimately, Madison’s camp won out and term limits were not incorporated into the Constitution. However, they remain a controversial issue. In 1951, the states ratified the 22nd Amendment to limit the president to two terms following Franklin D. Roosevelt’s historic 13-year tenure. Over the past several decades, various proposals to impose term restrictions on Congress have been introduced. While several states enacted reforms in the 1990s, the U.S. Supreme Court struck down the term limits laws as unconstitutional in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), holding that states can’t impose term limits on their representatives in the federal government beyond those provided by the Constitution.

Maximum Age Limits for Elected Office

Not surprisingly, the Founding Fathers did not consider age limits for political office. After all, the average life expectancy was just 38 years old for a White male living in 1787. With many Americans now living until their 70s, 80s and even 90s, the question of age limits has become much more relevant in the modern world. 

At 78, President Joe Biden is the oldest person to assume the presidency. However, when he was elected to the Senate, he just made the age requirement, turning 30 just a few weeks after his election and prior to taking oath of office in January 1973. That’s because Founding Fathers did set minimum ages for several elected offices. As dictated in the Constitution, the President and Vice President must be 35 years of age or older when assuming office; a Senator must be 30 years of age, and a member of the House must be 25 years of age. The Constitution does not establish any age requirements for Supreme Court justices.

In establishing age requirements, the Founding Fathers were worried about candidates’ maturity, with founder George Mason stating that “if interrogated [he would] be obliged to declare that his political opinions at the age of 21 were too crude and erroneous to merit an influence on public measures.” 

Many have raised similar concerns in seeking to establish maximum age limits, arguing that mental acuity declines with age. More than half of Americans support a maximum age limit for elected officials to hold office, according to a recent YouGov poll. However, critics of age limits for Congress argue that because voters are free to determine whether a candidate has reached his or her “expiration date” at the ballot box, formal restrictions are unnecessary. Similar arguments are what won the day at the Constitutional Convention.

Term Limits for Supreme Court Justices

Because they can’t be voted out, the argument for age limits is stronger for Supreme Court justices who receive a lifetime appointment. The average justice’s term is now longer than it has been at any other point in U.S. history and far exceeds the average tenure in the 1700s when the federal judiciary was established. 

As Supreme Court justices remain on the bench longer, the power of the Court has grown, raising the political stakes for appointments and confirmations. A 2020 PBS poll found that 77% of Americans support restrictions on the length of service by Supreme Court justices. In addition to concerns about the unchecked power that comes with lifetime service, supporters of age limits also argue that older justices may be more out of touch with average Americans.

Advocates for Supreme Court term limits have some notable supporters, including Chief Justice John Roberts. “The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today,” the Chief Justice stated. “Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.”

Feasibility of Term Limits

Even if federal term/age limits gain widespread support, it will still be an uphill battle, as a Constitutional amendment is needed to implement such limits. Under U.S. Constitution, there are two paths for amendments The first requires a two-thirds vote of approval by both the U.S. House of Representatives and the Senate, while the other involves a national convention called for by a two-thirds vote from state legislatures. In either case, the amendment must then be ratified by three-fourths of states.

Donald Scarinci is well known to our readers.  He is the founding Partner of Scarinci Hollenbeck, one of NJ’s largest law firms, lawyer and advisor to many NJ elected officials, a Trustee of the NJ Institute of Local Government Attorneys, editor of the popular Constitutional Law Reporter https://constitutionallawreporter.com/ and author of four books.

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