We have arrived at the end of another Supreme Court term. And once again, the oldest justice on the court — Stephen Breyer, who turns 83 next month — is enveloped in speculation concerning his retirement. Some on the left have gone so far as to call for him to step down so a younger replacement can be appointed while a Democrat controls the White House.
During our time on the bench we’ve witnessed some policies that work and could reduce partisanship if applied at the federal level.
This political jockeying exemplifies the polarization and dysfunction that now accompanies the filling of seats on the high court. We could alleviate both by imposing term limits for justices and having nonpartisan bodies establish criteria for nominations. Forty-nine states don’t allow tenured lifetime judgeships, including those in which we both served, and it’s time for the U.S. Supreme Court to follow suit.
The politicization of the Supreme Court does a great disservice to the judicial system and the nation as a whole. How we got to this point is a bitterly contested story, but there is little doubt that political parties increasingly use the nomination and confirmation process to cement power and control the composition of the court to better ensure that the law will be shaped to advance their political agendas.
The concerns have become so acute that a presidential commission was formed in April to review options for Supreme Court reform. As former chief justices of our states’ Supreme Courts, we’re part of another commission examining this issue, a task force organized by the Project on Government Oversight, a nonpartisan watchdog group. During our time on the bench we’ve witnessed some policies that work and could reduce partisanship if applied at the federal level.
We know, of course, that state court judicial selection is far from perfect. The state judicial systems that use partisan elections mirror the broken federal selection process, in which malicious campaigns are fueled by money that distracts voters from the merit of judicial candidates. But we also know that Congress could learn from certain elements of other state systems that reduce the chances that politics, rather than the rule of law, guides the courts.
One important reform the states have enacted is a limit on judicial tenure. U.S. Supreme Court justices serve until retirement, death or impeachment. Lifetime tenure raises the stakes of selection considerably since, as justices are serving for increasingly longer amounts of time, each now sits on the Supreme Court for more than 20 years on average.
The unpredictability of when seats open on the Supreme Court, coupled with the smaller number of seats available compared to the rest of the federal and state judicial system, also makes each opening highly consequential. And pressure can mount for justices to strategically time their departure to align with the politics of the president, reinforcing the partisan nature of any transition.
Lifetime tenure is not essential to judicial independence or democratic governance. The justices’ salaries are protected while they are in office and impeachment sets an exceedingly high bar for their removal. And the U.S. is an outlier among major democracies in giving its constitutional court judges power for life. It certainly isn’t the norm in the 49 states that impose a limit on the length of judicial service — often through a mandatory retirement age or set terms of office. These limits on tenure have not led to an outpouring of concern about the courts’ independence.
Given the outsize role of the Supreme Court in our system of governance, we propose limiting justices to a nonrenewable term of 18 years as a step toward balancing the competing interests of experience on the bench against the perverse incentives for administrations to appoint increasingly partisan justices, since this would lower the stakes for each appointment.
This arrangement would reduce some of the gamesmanship that currently exists in timing the retirement of justices or the mad scramble that results from the death of a sitting justice, both of which have factored into a significantly uneven number of appointments by presidents from one party over the past 60 years.
Equally important to the question of how long justices can stay on the Supreme Court is how they come to be nominated. Because the Constitution commits the responsibility of nomination and confirmation of federal judges to the president and Senate, politics play a vital role. But the Constitution says nothing about other qualifications for office. Groups who demand fealty to a specific judicial philosophy or ideology have rushed to fill the void, leaving the process open to prioritization of nominees selected for reasons other than their judgment, demeanor and wisdom.
Some states, however, have sought to elevate merit above all other considerations. About two-thirds of states use a screening commission to identify and evaluate judicial candidates. This is not a novel idea on the federal level either: President Jimmy Carter established screening committees to identify candidates for the federal appeals courts and, coupled with a 1978 bill that expanded the federal judiciary, transformed the demographic composition of the federal courts.
Commissions should include people with a diverse array of legal, personal and professional backgrounds who identify candidates possessing the expertise, experience and temperament to serve as judges — and who reflect the diversity of the people they serve.
And finally, we must remember that the court’s decisions affect each one of us. Yet its justices are largely unaccountable. Every judge on lower federal courts and on state trial, appellate and Supreme Courts is subject to codes of conduct that govern judicial behavior on and off the bench.
This is a stark contrast to Supreme Court justices, who have no enforceable ethical constraints. The justices also make their own decisions on whether to step aside due to a potential conflict, whereas several state courts prevent judges who have been asked to recuse themselves from making the decision unilaterally.
The public also has little access to the Supreme Court’s proceedings, as the court has forbidden cameras during oral argument — even though cameras are common in state courts and many lower federal courts.
The nation has changed dramatically since 1787 when the Constitution became the symbol of a new and liberating form of government. Yet after global and civil wars, a Great Depression and transformative new laws, the high court has stayed largely the same. Many of our state courts have increased access, advanced civil justice and modernized operations to strengthen the rule of law. We should seize the opportunity now to bring similar reforms to the Supreme Court of the United States.