Becoming a United States Supreme Court Justice is not an easy task, and for good reason. The individuals who sit on our country's highest court are all guaranteed a position for life under current rules. The Court's opinions can greatly affect the national legal and political landscape. By allowing the same justices to sit for decades at a time, the make-up of the court doesn't change very often. This means every Supreme Court appointment is a high-stakes affair.
Recently, some have begun to question this approach. Would term limits for the justices be better? Further, recent questions regarding the personal actions of some of the current justices have led to calls for more defined ethics rules for members of the Court. While Chief Justice John Roberts created a code of conduct for SCOTUS in 2023, these are non-binding. Unlike other federal courts, every justice on the Supreme Court is responsible for policing their own conduct.
President Biden cited these concerns when recently calling for Supreme Court reforms. The proposal includes allowing presidents to nominate new justices every two years and limiting the justice's term of active service to 18 years.
What Would It Take to Impose Changes on the Supreme Court Appointment for Life?
Even though President Biden proposed a change to the length of the term a justice serves, there is nothing he can do without the help of Congress and the states.
The lifetime appointment of all federal judges including Supreme Court justices is controlled by Article III of the United States Constitution which says that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour..." This phrase has always been interpreted to mean that federal judges have their jobs for life unless they are impeached for bad behavior.
The reasoning behind having a long and uninterrupted tenure is to keep judges from being affected by political pressure. Politicians must focus on their next election. The judicial branch, on the other hand, is somewhat insulated from this pressure and allows the judges to focus on the law and facts in front of them while maintaining a long-term view of the issues before the court.
To make a change to the Constitution you have to amend it. There are two ways to do that. The first is to have a proposal in the United States Congress followed by a vote where 2/3 of both the House of Representatives and the Senate is required. If the vote passes then the issue is sent to the governor of each state to ratify with 3/4 of them needed for the amendment to pass.
The second way is for 2/3 of the state legislatures or 3/4 of state conventions to propose an amendment and Congress to ratify it. This method has never been used so there are lots of unknowns about the process.
A Code of Conduct for Supreme Court Justices
Proponents of changes to the Supreme Court also believe an ethics code is needed for the justices. Unlike other federal judges, the justices did not have a written code of conduct until recently. A number of the justices have been in the news regarding questions about gifts they accepted, their refusal to recuse from cases where they may have a conflict, and other conduct.
President Biden included the code of conduct in his reform plans for the Supreme Court, but again he has no power to institute one. Only Congress or the Court itself ultimately has that power.
Is SCOTUS Reform Going to Happen?
While this is the first time in a long time that a sitting president has called for Supreme Court reforms, any proposal on term limits or other changes still face significant obstacles. It's extremely rare for Constitutional amendments to pass, for example. The last Amendment to be ratified, the 27th, occurred in 1992. And that was for the relatively uncontroversial matter of restricting salary increases for members of Congress. Reforming SCOTUS, on the other hand, is a very controversial idea.
For now, we'll have to wait and see if anything develops from this proposal.
Related Resources:
- Perceived Partisanship Has Led to Calls for New SCOTUS Ethics Rules (FindLaw's Courtside)
- Is it Time for a SCOTUS Code of Ethics? (FindLaw's Federal Courts)
- The Pros and Cons of Institutional Changes Being Floated for the Supreme Court (FindLaw's Federal Courts)
