The Case for Eighteen-Year Terms on the Supreme Court

The setting was chosen with care. On July 29, 2024, Joe Biden stood at the Lyndon Baines Johnson Presidential Library in Austin, Texas, to mark sixty years since Johnson signed the Civil Rights Act of 1964. A president who had spent half a century in Washington, including years as chairman of the Senate Judiciary Committee presiding over Supreme Court confirmations, used the occasion to call for something he had never before endorsed: fixed terms for the justices. Every two years, a president would appoint a new justice, who would serve eighteen years in active service on the Court. The proposal went nowhere in the Congress then sitting, and Biden left office months later. But the idea he embraced is older than his speech and broader than his party, and I think it is the single best reform on the table.

In short: Under staggered eighteen-year terms, each president would appoint two justices per four-year term, ending the lottery of deaths and strategic retirements that now decides the Court's makeup. The strongest objection is constitutional: Article III gives judges tenure during good behaviour. There are serious answers to that objection, and a constitutional amendment would settle it entirely.

How the Court's makeup is decided now

Under the current system, a seat on the Supreme Court opens when a justice dies, retires or, in theory, is impeached and removed. None of those events follows a schedule. Some presidents get several appointments in a single term; others get none. Jimmy Carter served a full term without appointing a single justice. Donald Trump appointed three in his first term, one of them to a seat that the Senate had held open for most of a year during the previous administration.

Because a justice's tenure is limited only by health and choice, the stakes of each appointment have grown with life expectancy. Justices now often serve a quarter of a century or more. Clarence Thomas joined the Court in 1991 and in 2026 has served thirty-five years. A justice confirmed in her late forties can reasonably expect to shape constitutional law for three decades or longer.

That produces three distortions. First, presidents look for young nominees, because youth is a strategic asset; experience matters less than the number of years ahead. Second, justices time their departures to hand their seats to a president who shares their views, which makes the Court's composition partly a product of the justices' own political calculations. Third, when a justice dies at an unexpected moment, as Antonin Scalia did in February 2016 and Ruth Bader Ginsburg did in September 2020, the vacancy becomes an all-consuming political battle, because a single seat can swing the Court for a generation.

The retirement game

The strategic-retirement problem deserves a closer look, because it shows how much the current system depends on individual choices that voters never get to weigh.

Justice Ruth Bader Ginsburg was urged by some liberal commentators to retire during Barack Obama's second term, when Democrats controlled the Senate and a like-minded successor could be confirmed. She declined, saying she intended to keep working while she could do the job well. She died in September 2020, and her seat went to Amy Coney Barrett, who holds very different views. Whatever one thinks of her decision, it changed the direction of the Court.

Justice Anthony Kennedy, the Court's longtime swing vote, retired in 2018, while a Republican president and a Republican Senate could confirm his successor; Brett Kavanaugh took the seat. Justice Stephen Breyer retired in 2022, while a Democratic president and a Democratic Senate could confirm his successor; Ketanji Brown Jackson took the seat. Both of those retirements were widely understood as strategic.

None of this is scandalous. Justices are people, and they care about their legacies. But it means a body that is supposed to stand above politics is constantly making political calculations about its own composition. Under eighteen-year terms, there would be no retirement game to play. The schedule would decide.

What other democracies and the states do

It helps to look outside the federal system, because the United States is close to alone in how it treats its highest court.

Germany's Federal Constitutional Court, one of the most influential constitutional courts in the world, appoints its judges to single, non-renewable terms of twelve years, with an age limit. Canada requires its Supreme Court justices to retire at seventy-five. The United Kingdom's Supreme Court justices face a mandatory retirement age of seventy-five. Australia's High Court justices must retire at seventy. None of these countries is considered to have a politically captured or weak judiciary because of these limits; if anything, the limits help keep courts from being tied to any single era.

The states point the same way. Nearly every state limits the tenure of its highest court judges in some form, through fixed terms, retention elections or a mandatory retirement age. The federal model of open-ended tenure with no age limit is, among American high courts, the rare exception rather than the rule.

That comparison does not prove that eighteen-year terms are right for the United States. It does answer the claim that anything short of life tenure threatens judicial independence. Independent courts around the world operate with limits, and so do the courts of the fifty states.

How eighteen-year terms would work

The basic design is simple. Nine justices, each serving eighteen years, with terms staggered so that one ends in the first year after each election and another in the third. Every president would appoint two justices per term. Over any eighteen-year stretch, the Court would reflect the choices of the presidents and Senates the voters had elected during that time.

The details require care, and serious proposals address them. When a justice dies or leaves early, a replacement would serve only the remainder of the term, so the schedule holds. If the Senate refuses to act on a nominee, some proposals let the nominee be seated after a set period or allow the president to fill the seat temporarily; others would leave it to Senate rules. The transition can be handled by applying the system to future justices only, or by phasing in the sitting justices from most senior to least, depending on how ambitious the drafters want to be.

A justice who finishes eighteen years would not be thrown out of the judiciary. Under most statutory plans, she would move to senior status, sitting on lower federal courts or being available to fill in on the Supreme Court if a sitting justice is recused. She would keep her salary and her title as a federal judge.

The constitutional objection, stated fairly

Article III provides that federal judges, "both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." That phrase has always been understood to mean life tenure, subject to impeachment. The objection is straightforward: Congress cannot by statute limit how long a justice serves, because the Constitution guarantees service during good behaviour.

The objection has a second layer. Article III also creates "one supreme Court." Opponents argue that a justice is appointed to an office on that Court, not to a generic federal judgeship, and that moving her off the Court after eighteen years would remove her from the office the Constitution protects. Some also point to the Appointments Clause, which requires the president to nominate and the Senate to confirm "Judges of the supreme Court," and argue that rotating justices in and out would blur who holds the office.

These are serious arguments, and anyone advocating term limits by statute should not pretend otherwise. Many scholars, including some who support the policy, believe a constitutional amendment would be required.

The answers

Here is the case for the statutory route, laid out as its defenders make it.

The Constitution does not specify how many justices there are, how long they must sit on any particular bench, or what duties they must perform. Congress has always decided those things. In the early republic, justices "rode circuit," spending much of their time hearing cases in lower courts around the country, and Congress set those duties by statute. A justice who rotates to senior status after eighteen years keeps an office as an Article III judge, her salary and her tenure during good behaviour. What changes is her assignment.

There is also an argument from structure. The Constitution gives Congress broad control over the Court's appellate jurisdiction, its size and its budget. A modest change to the assignment of justices is less dramatic than many changes Congress has made in the past.

Reasonable people can find these answers persuasive or not. The cleanest solution is a constitutional amendment. That is a much harder path, requiring two-thirds of both houses and ratification by three-quarters of the states, but it would end the legal argument. An amendment also has a political advantage: because it would apply to future presidents of both parties equally, it is easier to present as a reform rather than a partisan move.

Why this is not a partisan idea

It is worth knowing where the eighteen-year proposal came from. Among its most influential early versions was a 2006 law review article by Steven Calabresi and James Lindgren, both conservative legal scholars at Northwestern; Calabresi is a co-founder of the Federalist Society. They argued for eighteen-year terms by constitutional amendment, on the ground that life tenure had become dangerous as lifespans lengthened and justices stayed longer. Scholars on the left reached the same conclusion through a different route, worried about a Court insulated from democratic change.

Polls in recent years have repeatedly found majority support for term limits on the Court, including among many Republicans. That support has held even as the Court's conservative majority has delivered rulings Republicans favour.

The argument against partisan suspicion is simple: under eighteen-year terms, no party knows in advance who will benefit. The schedule gives each president the same number of appointments. A Republican president elected in 2028 would get two; so would a Democrat. The lottery would end for everyone.

The other objections, and why they fall short

Critics raise practical concerns beyond the constitutional ones. Here are the most common, with answers.

More frequent confirmations would make the Court a permanent campaign issue. Perhaps, but the Court is already a permanent campaign issue, and the stakes of each confirmation would fall, since no single appointment could lock in a majority for decades. Regular, predictable confirmations would likely be less bitter than rare, unpredictable ones.

Justices would start angling for their next job. A justice who rotates to senior status keeps a lifetime judicial salary and has no need to please anyone. The concern is fair for plans that would end judicial service entirely after eighteen years, which is one reason most plans do not.

The change would destabilize precedent. A Court whose membership changes on a regular schedule might shift more steadily, but it would shift less violently than one that can swing on a single death. Stability comes from predictability, not from the luck of who lives longest.

What I am arguing, and what I am not

To be clear about the opinion here: I am arguing that staggered eighteen-year terms would make the Court more legitimate, more predictable and more accountable to the democratic process over time, without threatening judicial independence in any particular case. I am not arguing that term limits would change any specific ruling, or that they would deliver a progressive majority. They would not guarantee either. Their value is that they would make the Court's composition track the country's choices rather than the actuarial tables.

There is also a human argument. Under the current system, the country waits on the health of a handful of elderly people, and every hospital visit by a justice becomes national news and partisan speculation. That is undignified for the justices and unhealthy for the country. A fixed term lets a justice serve with distinction, step back at a known date and hand the seat on without anyone keeping a death watch.

Progressives sometimes resist proposals that do not promise quick results. This is one where patience pays. Reforms that apply equally to both sides tend to last longer and win broader support than reforms that look like grabs for power. Term limits pass that test. The question for the new Congress that takes office in January 2027 is whether anyone will spend the political capital to move them forward, by statute, by amendment or both.

What you can do

1. Follow how the current Court is deciding cases. The Court Watch page lists this term's opinions with the Court's summaries, its emergency docket and the Senate's votes on judges.
2. Read the reform debate in depth. The court reform coverage gathers reporting on term limits and related proposals.
3. Tell your members of Congress where you stand. Enter your address on the representatives page to find your representative and senators, their phone numbers and contact forms, and their latest votes. Ask whether they would co-sponsor term-limits legislation or a constitutional amendment.
4. Find bipartisan allies. The common ground page shows bills both parties have passed together; ask your representatives whether they see term limits as a candidate for that list.
5. Talk about it with someone who disagrees with you. Term limits are one of the few court reforms that many conservatives also support. Start there.