The longest-serving SCOTUS justices make a compelling case for term limits

Several years ago, a prominent American political figure uttered words to the effect that he could shoot somebody on Fifth Avenue in New York and not have to answer for it. It worked that way for several years, but he was brought short four years later when he had to face the people in a subsequent election. 

Accountability for public servants was built into our political system, but the safeguards have utterly failed when it comes to our nation’s highest court. Justices of the U.S. Supreme Court (SCOTUS) can engage in behavior that would have curled the hair of our founding fathers, without having to answer for their misconduct in office.

The framers required “good behavior” from judges in order to retain their high office, but provided no means of bringing them to account, other than impeachment. Those public-minded patriots could not have envisioned the fierce partisanship that divides the country today, rendering impeachment of judges, even for gross misconduct, a practical impossibility. Nor could the framers have contemplated that the average life expectancy of Americans would now more than double the 34.5 years of age at the time the Constitution was written or that justices would cling to their seats until the onset of senility.

Longevity in these exalted positions of unchecked power often breeds arrogance, a sense of entitlement and political activism. We have witnessed too many instances in recent years where SCOTUS members have misused their positions to advance the interests of their political friends.

Justice Thomas has had 31 years to build up a record of bad behavior on SCOTUS — his financial dealings with billionaire Harlan Crow, his refusal to comply with simple disclosure requirements and a failure to recuse himself in a pending case that would support his wife’s reported designs to capture the presidency for the GOP. 

During his 17 years, Justice Alito has become increasingly arrogant, politically motivated and intolerant of sound jurisprudence, all of which was captured in the short dissent he filed in the abortion pill case, which one observer rightly characterized as “outrageous.”

Chief Justice Roberts, who has done his level best during his almost 18-year tenure to dismantle voter protections for minorities to the advantage of the GOP, has consistently resisted efforts to place reasonable ethical restraints on the court. All of this has resulted in a historic drop in public confidence in SCOTUS, which constitutes a serious danger to the rule of law in the United States. These longest-serving justices make a compelling case for dramatic reforms to this vitally important American institution.

There are any number of things that Americans could demand to restore honesty, competence and impartiality to SCOTUS but many of them — such as a rational confirmation process and an enforceable ethics code — are unlikely to happen with the current makeup of Congress. 

However, a limitation on their term of service, which has strong public support and might help keep SCOTUS members from misbehaving, would be a great place to start. Recent polling disclosed that 67 percent of Americans (82 percent of Democrats and 57 percent of Republicans) support term limits for these unaccountable officials.

Some term-limit naysayers point to the “good behavior” wording in the Constitution as a roadblock to term limits. In other words, justices may serve throughout their entire lifetime, regardless of what Congress may say. However, there is an easy answer. Don’t limit their tenure, but merely change their status from full-time active court members to “senior” members. Many states, like my home state of Idaho, provide for senior justices who can fill in when an active justice recuses on a case. Senior justices also participate on court committees and help with proceedings in the state’s lower courts.

Congress can and should enact legislation to limit SCOTUS members to a maximum term of active service of 18 years and then switch them to senior status for as long as they wish. That would give the court a group of senior justices who could step in and serve by random selection when an active justice recuses on a case or is unable to act because of illness or whatever else. That would make it more likely for Justices to recuse on a case when they really should. It would also provide a group of senior justices who could work with outside organizations on court committees without creating real or perceived conflicts. Unseemly actions occurred in the past when active justices interacted with influencers.

A limit on terms of service could open up the possibility for older, more experienced lawyers and jurists to serve on the high court since presidents would no longer have a need to pick less experienced youngsters to serve for numerous decades.

The senior justices would have to receive full pay, as required by Article III, Section 1 of the Constitution, but they would need to continue providing a service beneficial to the court system. It would be a small price for citizens to pay, compared with the benefits to be derived from having turnover and a continuous supply of fresh blood on SCOTUS.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.

Editor’s note: This piece was updated on May 3 at 2:42 p.m.