How Democrats could fix the Founding Fathers’ Supreme Court mistake

Our justified respect for the Founders should not stop us from acknowledging that the Constitution they wrote got some things wrong. Recent years have seen increasing interest in fixing one of their mistakes: the life tenure held by justices of the Supreme Court.

If properly designed, term limits for the justices might improve the constitutional structure and lower the temperature of confirmation battles. But supporters of the idea should be aware that even in the unlikely event that they succeed, it wouldn’t address the most bitter and widespread complaints about the court.

Under the Constitution, federal judges, including the justices, hold office “during good behavior.” They can be removed only through an impeachment process that involves a two-thirds vote of the Senate. Congress has never removed a justice, although one resigned rather than face the possibility.

The Founders didn’t expect us to have life spans as long, a judiciary as powerful or partisanship as intense as we do. One result is that the course of government policy on a very wide range of issues depends crucially on what the retirement plans and health of nine people happens to be. Another is that every vacancy on the Supreme Court sets off an ugly battle. Justices also stick around long after their confirmations: Nowadays, they serve nearly twice as long as the average justice before 1970.

Nobody writing a constitution knowing how our system has evolved would include life tenure for justices. President Biden’s commission on judicial reform noted that no other constitutional democracy provides life tenure for the judges on its high court. Democratic Reps. Adam B. Schiff (Calif.) and Hank Johnson (Ga.) have just introduced a term-limit bill, and progressive organizations have endorsed it. Republican Sen. Ted Cruz (Tex.) has declared himself “open” to the idea.

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