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Support for US Supreme Court term limits
Pic: Shutterstock

22 Nov 2021 / global news Print

Support for US Supreme Court term limits

A US presidential commission that is examining how the US Supreme Court operates has indicated continued interest in term limits for judges, according to the ABA Journal.

The Presidential Commission on the Supreme Court of the United States released the discussion papers last week ahead of a meeting scheduled for last Friday.

President Biden had created the commission in April to analyse proposals to reform the country’s top court.

According to one of the documents, the term-limits proposal has “considerable, bi-partisan support”.

18-year terms

The idea most often proposed is to create staggered 18-year terms for the judges, which would be timed to open up a seat every two years.

The US is the only major constitutional democracy that has neither a retirement age nor a fixed term limit for its Supreme Court judges, the document points out.

The average length of terms has lengthened – from around 15 years until the late 1960s to around 26 years for judges who have left the court since 1970.

“The increasing length of the justices’ terms, in turn, raises the stakes of each nomination,” according to the document.

Supporters argue that giving presidents the ability to nominate justices at regular intervals “would help ensure, at least in the long run, that the Supreme Court does not fall too far out of line with the country’s evolving norms and political values”, the document said.

Concern about 'cycles'

Opponents argue, however, that it is the role of a judge to apply and develop the law, rather than to decide cases based on the temper of the times.

According to the ABA Journal, those opposed also worry that increased turnover could lead to cycles, in which major precedents are discarded, and then reinstated.

Members of the commission are divided on whether term limits could be accomplished by statute or whether a constitutional amendment is needed.

There is widespread agreement that the US Congress has the power to implement another proposal – to expand the size of the Supreme Court. 

“There is profound disagreement over whether court expansion at this moment in time would be wise,” a document examining that idea says.

President Biden will receive the final report next month.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland