October 25, 2023
In 2018, the bipartisan Commission on the Practice of Democratic Citizenship, a project of the American Academy of Arts and Sciences (the Academy), launched an effort to develop responses to the weaknesses and vulnerabilities in our political and civic life and to enable more Americans to participate as effective citizens in a diverse twenty-first-century democracy. This effort included a review of the Supreme Court and its role in our current political crisis. When the Commission issued its thirty-one recommendations for strengthening democracy in the report Our Common Purpose: Reinventing American Democracy for the 21st Century, the recommendations included the proposal for eighteen-year Supreme Court term limits.To further the effort to advance this idea, the Academy convened a working group of top experts in the field of constitutional law and Supreme Court reform to develop a comprehensive proposal for enactment of eighteen-year term limits for U.S. Supreme Court justices. In this moment when the rhetoric surrounding Court reform is becoming increasingly politicized, the members of this group feel that the need for a dedicated body to lay out a thoughtful, nonpartisan path forward on this important reform is clear. This paper is the result of the working group's yearlong deliberations and is intended to fill that void.The paper first describes why eighteen-year term limits are a vital reform, one that would positively impact on the polarization and partisanship created by life tenure by reducing the incentives for strategic retirements and political campaign–style efforts focused on the nominations process, and by improving the reputation of the judicial system itself. This reform is not only broadly supported by scholars, the legal community, and the public; it would also put the United States in the company of most other nations, as well as all but one of the states of the United States.The paper then examines various proposals offered to create limited terms for justices and lays out our vision for the best possible approach, one that is both constitutionally viable and achievable in a reasonable time frame. Our recommendation centers on an eighteen-year term imposed via statute. In the sections below, we explain why a statute would be constitutional, how it would work, including the transition period and need for a short period of Court expansion, the role of "senior justices," dealing with unexpected vacancies, and overcoming possible Senate obstruction.Our consensus position is that this proposal presents the strongest and most broadly supported reform for a Supreme Court that has been much buffeted by reputational challenges and the political polarization that has been so prevalent in the nation. Adoption of eighteen-year term limits will not solve all of our problems, but it would go a long way toward restoring the actual and perceived legitimacy and impartiality of our highest court.