Proposal would term-limit Supreme Court justices without amendment

By Brett Rowland
The Center Square

Senate Democrats introduced legislation this week to impose 18-year term limits on U.S. Supreme Court justices by statute, a route that would sidestep the constitutional amendment such a change has long been thought to require.

The Supreme Court Biennial Appointments and Term Limits Act, from Sen. Sheldon Whitehouse, D-R.I., is similar to his 2023 proposal. Backed with 10 Democratic cosponsors, it would seat a new justice every two years, each serving 18 years on the court's full docket before shifting to a limited role.

Backers call it a fix for a politicized court; critics question whether Congress can restructure the bench without amending the Constitution.

Even backers acknowledge the bill faces long odds in a Republican-majority Senate. Its deeper test would come later. Should term limits ever become law, the justices themselves would likely decide whether Congress had the power to impose them.

Whitehouse, the top Democrat on the Judiciary Committee's federal courts subcommittee, cast the measure Wednesday as a check on a court he says is "out of step with the American people" and captured by "dark-money funded" special interests. Term limits and regular appointments, he said, would make the court "more representative of everyday Americans."

The bill leans on Congress' constitutional power to set "exceptions" and "regulations" for the court's appellate docket. Only the nine most recently confirmed justices would hear those appeals, the bulk of the court's work, including cases like Dobbs and Citizens United. Justices past their 18 years would keep their seats, drawing the narrow set of "original jurisdiction" cases the Constitution assigns the court.

Whether Congress can do this without amending the Constitution is contested.

A bipartisan presidential commission that studied the idea in 2021 found scholars "divided" on the question. Proponents say the Constitution's "good behavior" clause is satisfied because justices keep their offices and salaries, merely shifting duties. Critics counter that stripping a sitting justice of the court's central work is a demotion the Constitution doesn't permit without the amendment process.

Republicans have largely framed Democratic court proposals – adding seats, rotating or term-limiting justices – as variations on "court-packing."

Judiciary Committee Chairman Chuck Grassley, R-Iowa, backs a constitutional amendment fixing the court at nine, and his 2022 campaign said 18-year terms would "undermine judicial independence."

The Center Square was unsuccessful prior to publication getting comment from Grassley on whether term limits could be imposed by statute.