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Ted Cruz Is Right: The Supreme Court Needs Term Limits

But judicial elections are not the answer

Mark Wilson/Getty Images

The intense focus on the Supreme Court and its end-of-term decisions is an occasion for considering the need for Supreme Court reform – and Senator Ted Cruz has energetically taken up the issue. In reaction to the court’s high-profile liberal decisions upholding Obamacare subsidies and declaring a right to same-sex marriage, Senator Ted Cruz has proposed a constitutional amendment that would require the justices to face retention elections, providing a stronger check on the justices’ power.

Although Senator Cruz has the right intention, his proposed solution would endanger the independence of the Court, rather than bolster it. Judicial elections at the state and local level have consistently led to justices inappropriately considering electoral pressures in making decisions, often to the detriment of individual rights—so imagine the reverberations of judicial elections on a national scale. 

However, there is a reform that truly deserves thoughtful consideration: term limits for Supreme Court justices. In a year in which both liberals and conservatives have had plenty of decisions to cheer for and to criticize, term limits appropriately does not favor either political party or any ideology and has strong bipartisan support.

There are many ways to accomplish term limits, but the best idea is that each justice should be appointed for an 18-year, non-renewable term, thus creating a vacancy every two years.  

Life expectancy is dramatically longer today than when the Constitution was written in 1787. The result is that Supreme Court justices are serving ever longer, with the last four to leave the court having served, on average, for 28 years. This trend is continuing with the current court. Clarence Thomas was 43 when he was appointed, and John Roberts and Elena Kagan were each 50 at the time of their appointments. If these justices serve until they are 90–the age at which Justice John Paul Stevens retired–they will have been on the bench for upwards of four decades apiece.

That structure–giving outsized power to unelected judges–should change, but putting Supreme Court justices on the ballot is not the answer.

The absence of term limits means that a president’s ability to select justices is based on the fortuity of when vacancies occur. Jimmy Carter, for example, had no vacancies to fill. By contrast, Richard Nixon got to select four justices in his first two years in office and reshaped the Supreme Court in a way that lasted for generations. Having a vacancy every two years would give all Presidents the chance to equally influence the court. 

Eighteen years is long enough to allow a justice to master the job, but not so long as to risk a court that reflects political choices from decades earlier. A system of government that allows a handful of men and women to hold great power for such an extended period of time is, by nature, more feudal than democratic.

Unlike judicial elections, making the appointment non-renewable helps ensure that a justice won’t decide cases in a way to help ensure continued service. 

Liberals might bemoan that term limits would push a Ruth Bader Ginsburg (who has served since 1993) off the court, while conservatives could lament the loss of an Antonin Scalia (who has served since 1986). But standard terms would treat all justices the same.

Although term limits for the Supreme Court would be a significant change, it is hardly a radical idea. No other country in the world gives life tenure to its judiciary. Only one state (Rhode Island) does. Yet the experience in all of these places demonstrate that judicial life tenure is not needed for a successful constitutional democracy.

In the 2012 Republican primaries, conservative Texas Governor Rick Perry proposed 18-year, non-renewable terms for Supreme Court justices. Liberals, like me, have advocated for it, as well. 

Amending the Constitution is always enormously difficult, and though some legal scholars disagree with me on this, I believe that terms limits would require a constitutional amendment.  

But I also think that a strong bipartisan coalition can make possible the basic good government reform of ending life tenure at our nation’s most powerful institution. I applaud Senator Cruz for bringing attention to a critical issue often left out of the conversation, but I encourage the Senator to consider standard, 18-year terms over judicial elections as the right path forward.