The Supreme Court needs term limits: John Roberts’s term should be first

According to respected polls, public approval of the Supreme Court has dropped precipitously to the lowest level in the 50 years that it has been measured.  

The continuous revelations of contempt by Justice Clarence Thomas and Justice Samuel Alito for the requirements to behave ethically and disclose potential conflicts have certainly hurt the court’s public standing. But make no mistake: The loss of public confidence in the court reflects the fact that since the confirmation of Amy Coney Barrett in October 2020 to fill the vacancy created by Justice Ruth Bader Ginsburg’s death, America has found itself in the grip of an extreme court majority, which shows no respect for the law, precedent, constitutional rights and personal freedom, or the other branches of government. 

While the Dobbs decision overturning Roe v. Wade understandably gets the most attention, other court decisions, such as those limiting the ability of states to establish reasonable gun control regulations or the Environmental Protection Agency’s ability to regulate carbon emissions, are similarly radical.  

“With the accuracy of a drone strike, the three justices appointed by President Donald Trump and strong armed through to confirmation by Mitch McConnell, then the majority leader, are doing exactly what they were sent to do,” wrote Linda Greenhouse, the longtime Supreme Court correspondent for the New York Times as early as December 2021. “The resulting path of destruction of settled precedent and long-established norms is breathtaking.”  

“The Least Dangerous Branch,” in Yale Law Professor Alexander Bickel’s famous phrase, has become the most dangerous branch. A constitutional system based on checks and balances and a society grounded in personal freedom cannot survive if five or six members of the court are allowed to rampage unchecked, with ultimate authority, accountable to no one. 

Yet this specter is what we have. It is also precisely what McConnell, the architect of this court majority, intended, and delivered through a corrupted confirmation process. During his victory lap when Judge Barrett was confirmed, McConnell jubilantly noted: “A lot of what we have done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time.” By “they,” McConnell meant future presidents, Congresses, and voters; it was a shocking statement for a political leader in a democracy. 

Now, to save our democracy, McConnell’s “they” must fashion a democratic, with a small d, response. It is long past time to limit Supreme Court justices to 18 years of active service.  

This is not a new idea. Over the past decade, it gained strong support from liberal and conservative legal scholars, and from Democrats and Republicans across the political spectrum. 

A Marquette poll showed 72 percent support for the idea of term limits for Supreme Court justices, with no significant difference in approval between Democrats and Republicans. As the Biden Presidential Commission on the Supreme Court judicial commission noted in its report (without taking a position on the idea): “The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limits for its high court justices.” Across our country, except for Rhode Island, every state has either term limits or age limits for the judges of its highest court.   

University of Chicago Law professor Tom Ginsburg, a leading expert on the subject, testified to the Biden Commission: “Were we writing the United States Constitution anew, there is no way we would adopt the particular institutional structure that we have for judicial tenure. No other country has true lifetime tenure for its justices, and for good reason.” 

Politically-timed resignations further exacerbate the damage. The last Democratic president to have a chief justice confirmed was Harry Truman, who nominated Fred Vinson in 1946 — 77 years ago. 

Support for 18-year term limits was building even before the Supreme Court became the “Extreme Court.” The radicalization of the court since Barrett’s confirmation provides the impetus for action. As Sen. Everett Dirksen (R-Ill.) memorably quoted Victor Hugo at the end of the debate on the 1964 Civil Rights Act: “Stronger than all the armies is an idea whose time has come.” 

It is realistic to recognize that a legislative battle over imposing term limits on Supreme Court justices could have the unfortunate effect of further politicizing the court in a bitterly divided nation. One person, however, could advance the idea of term limits while de-politicizing the court.  

Forty years ago, John Roberts, already a rising legal star, wrote: “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 25 or 30 years was a rarity then, but is becoming commonplace today. Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.”  

In September, Chief Justice Roberts will mark 18 years on the court. The best thing he could do for the court, the country and his legacy would be to pledge in September to leave the court in June 2025, after 20 years as chief justice. He could use his two last two years to implement the ethics code that the court failed to produce in his first 18 years. His announcement would be a healthy shock to the system because he would be pledging to leave without knowing which party would control the White House or the Senate. 

Readers will scoff at the idea that Roberts, who would only be 70 in 2025, would relinquish power. But Chief Justices Earl Warren and Warren Burger retired after serving 16 and 17 years, respectively. And we revere George Washington because of his decision to step down after two terms as president. 

John Roberts has had the greatest privilege that our Republic can bestow: In our 236-year history, America has had 46 presidents but only 17 Supreme Court chief justices. Is it too much to ask that he does something to heal the court and our divided country? 

Ira Shapiro, a former Senate staffer and Clinton administration trade ambassador, has written three books about the Senate, the most recent is “The Betrayal: How Mitch McConnell and the Senate Republicans Abandoned America” (2022).