BU Today: How would the US enforce term limits on Supreme Court justices, if there were to be limits?

If the term limits are only by statute, the Supreme Court would strike them down immediately, and maybe by a vote of 9-0.

If the term limits are imposed by constitutional amendment, then they would work like six-year terms for Senators, two-year terms for members of the House, and term limits for presidents. At the end of 18 years, the justice is no longer a justice, and the president and Senate could have a new appointee ready to start that same day. Of course, political actors could always refuse to comply with the law, and we have recently seen a loser of a presidential election try to cheat his way past an election and the end of a term. The political system worked well enough in January 2021 to withstand that attack, but a month later, the Senate failed to convict and disqualify, and here we are in 2024. We can’t take it for granted that our national political culture will demand the enforcement of constitutional law and basic democratic norms.

BU Today: Would the rolling two-year appointment schedule help to balance out the court, the way Biden suggests it would?

This two-year schedule is the best part of the proposal, but it is imperfect. Supreme Court justices have been timing their retirements for their partisan or ideological commitments: as justices approach retirement age, conservative justices wait for a Republican president, and liberal justices wait for a Democratic president. Conservative justices have been better at this timing. 

Justice O’Connor reportedly said on election night 2000, when it appeared Vice President Gore would defeat then-Governor George W. Bush, “Oh no, now I can’t retire.” A month later, she was the fifth vote in Bush v. Gore. She didn’t retire in those four years, probably because of the cloud of Bush v. Gore, but soon after Bush won reelection, she retired. Justice Kennedy similarly retired after he received signals or assurances from the Trump administration. On the other hand, health is unpredictable, and a sudden death during an election year can hyper-politicize a presidential election. See Justices Scalia and Ginsburg.

BU Today: Is there a better schedule or cadence for appointing justices?

Eighteen-year term limits mean that every president gets two regular 18-year appointments. However, what if a Senate blocks a president from appointing one or both seats? Then we’re back to 2016, when President Obama nominated Judge Merrick Garland, and Senator McConnell (R-Ky.) and the Senate Republicans kept Scalia’s seat open past through the election. Could an obstructionist Senate block both appointments over four years, so that the next president would have those two open seats plus two more regular appointments?

The better solution is to pass a statute that makes each current justice’s seat their own seat, and that seat expires at their retirement or death. Then every president gets a new appointment every two years. If the president and Senate cannot agree on an appointment in those two years, that opening expires—no reward for obstructionism.

Over the next 20 years, the court would very gradually expand, probably to 12 or 13, as 10 new seats open—but some of them likely go unfilled due to partisan disagreement, and some of the more recently appointed justices remain on the court. This is not “court-packing,” because it is so incremental and equal opportunity for both parties to win presidential elections and take advantage of the regular appointment schedule, two per presidency.

This proposal addresses the real problem, the Supreme Court’s far-right 6-3 personnel, and it does it more immediately, but also moderately and more valid constitutionally than term limits. But the Democrats probably understand that any form of court expansion would be misportrayed or misunderstood, and that political risk in 2024 may be greater than the reward.

BU Today: Third, Biden is calling for a “binding code of conduct” for the Supreme Court. What might that look like? Are there examples in other levels of the court system that could be applied at the scale of the Supreme Court? And would it really help?

We’re not sure what a “binding code of conduct” means. Generally, the lower federal courts and state courts have a process for parties and citizens to file judicial ethics complaints, and the judges enforce those ethics codes on each other. For example, if a trial or lower appellate judge has an alleged conflict of interest or an alleged appearance of bias, but refuses to recuse, then appellate judges can hear the legal complaint and can use “disqualification,” the appellate form of forcing a lower court judge to recuse.

The Supreme Court adopted a more voluntary “code” last winter, but it has no provision for parties or citizens to bring a judicial ethics complaint against them, and there is no disqualification provision. The justices only self-enforce. Over 50 years ago, when President Lyndon Johnson nominated Justice Abe Fortas to be chief, a financial scandal and an appearance of impropriety led to self-enforcement: Fortas withdrew from the nomination and also resigned entirely. 

That self-enforcement is unimaginable now, as Justice Thomas’ wife allegedly was involved in a conspiracy to overturn the 2020 election, and both Justices Thomas and Alito face significant questions about receiving massive gifts from billionaires, among other concerns about extreme political symbolic statements.

The better approach is to change the anti-corruption laws to make it a crime for judges to receive significant gifts, without having to prove bribery. Then a justice could be convicted of a crime. This federal law would require a federal prosecutor and a unanimous jury. The law should be explicit that state prosecutors have no jurisdiction to enforce these criminal prohibitions.