A term limit solution to SCOTUS circus?

Sensible idea but might not end partisan warfare on court picks

THE IDEA THAT the future tilt of the Supreme Court rested with Ruth Bader Ginsburg’s oncologists is about all you need to know to understand something is wrong with how we fill seats on the most consequential court in the land. 

While no medical intervention likely could have staved off Ginsburg’s death last Friday from pancreatic cancer at age 87, her physicians no doubt had a much clearer idea than anyone else in recent months that the country might be plunged into an epic pre-election partisan battle over the seat she held for 27 years. 

There has been lots of hand-wringing and ruminating on the left over whether Ginsburg bears some blame for the circus that has ensued. Already in her 80s at the start of President Obama’s second term, why, those voices have asked, didn’t she retire then and let him nominate a replacement of similar ideological bent?

But there are also growing calls for structural reform that would put an end to all the gamesmanship that has become an increasing part of the court’s legacy. The most straightforward of the proposals: staggered term limits on the service of high court justices.

Conservative Boston Globe columnist Jeff Jacoby endorses the idea today, and says it’s a view that enjoys broad support across the ideological spectrum. He says Chief Justice John Roberts, a George W. Bush appointee, voiced support for the idea as a White House lawyer in the early 1980s, while Justice Stephen Breyer, appointed by Bill Clinton, did so as recently as a 2016 interview. “In fact, it’d make my life a lot simpler,” Breyer said.

“There aren’t many issues on which Americans still see eye to eye, but this appears to be one of them,” writes Jacoby. The same might be said about his views on big issues of the day and those of the paper’s liberal-leaning editorial board. But Jacoby’s column appears on the same day that a Globe editorial also issues a call for 18-year terms on court appointments. 

The paper says polling in recent years has shown support for such a change ranging from 72 percent to 80 percent of all Americans. 

A 2006 article in the Harvard Journal of Law and Public Policy by Northwestern University law professors Steven Calabresi and James Lindgren laid out the idea in detail. The basics of it would have presidents nominate one new justice for an 18-year term every two years — in odd-numbered, non-election years. Rather than having the number of appointments a president makes left to chance — or the actuarial table readout on the nine justices when he or she takes office — presidents would nominate two justices during each four-year term. 

Ilya Shapiro, writing in The Atlantic, says there are a lot of good arguments for the 18-year term proposal. But Shapiro, who is director of the Robert A. Levy for Constitutional Studies at the conservative Cato Institute, cautions that such a reform would be no cure-all. 

On the most practical level, he writes, transitioning to such a system would take decades, during which time the court would have a mix of justices appointed for life and for 18-year terms. It would be a judicial version of the adage about trying to fix the plane while flying it. 

Meet the Author

Michael Jonas

Executive Editor, CommonWealth

About Michael Jonas

Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency.

Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section.

Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston.

Michael lives in Dorchester with his wife and their two daughters.

About Michael Jonas

Michael Jonas has worked in journalism in Massachusetts since the early 1980s. Before joining the CommonWealth staff in early 2001, he was a contributing writer for the magazine for two years. His cover story in CommonWealth's Fall 1999 issue on Boston youth outreach workers was selected for a PASS (Prevention for a Safer Society) Award from the National Council on Crime and Delinquency.

Michael got his start in journalism at the Dorchester Community News, a community newspaper serving Boston's largest neighborhood, where he covered a range of urban issues. Since the late 1980s, he has been a regular contributor to the Boston Globe. For 15 years he wrote a weekly column on local politics for the Boston Sunday Globe's City Weekly section.

Michael has also worked in broadcast journalism. In 1989, he was a co-producer for "The AIDS Quarterly," a national PBS series produced by WGBH-TV in Boston, and in the early 1990s, he worked as a producer for "Our Times," a weekly magazine program on WHDH-TV (Ch. 7) in Boston.

Michael lives in Dorchester with his wife and their two daughters.

And even once fully in place, such a system alone could not prevent the hyper-partisan approach to governing that has increasingly become the norm. What if, under such a reform, “a GOP-controlled Senate blocks a Democratic president’s 2025 and 2027 nominations?” Shapiro asks. “A Republican president is then elected in 2028 and the Senate confirms four nominees: in 2029 and 2031, to serve the regular 18-year terms, and for the two empty seats, with 14 and 16 years left on their terms, respectively. This could happen in every cycle of divided government, and would exacerbate, not lessen, the politicization of the confirmation process.” 

In other words, whether it’s true that we get the government we deserve, there’s no getting around the fact that we get the one shaped by the politics of the time.