The wave of populism that washed over the United Kingdom, the United States and many other countries from 2016 onwards looks like it may now be receding.
But some of its effects will linger. For the UK, the departure from the European Union will take decades to reverse, and indeed Brexit is perhaps irreversible. And the US now has a conservative majority of 6:3 in its Supreme Court.
Until and unless its composition changes, Americans are stuck with a court where six of the nine judges were nominated by Republican presidents— including three nominated by Donald Trump—and take a conservative approach to their jurisprudence.
Is there anything that can be done about this? Or should those who favour a liberal approach to the law simply wait for vacancies in due course? Should there be action or should there be patience?
The current and outgoing Democratic president Joe Biden believes there should be action, and that it should include a term limit for judges. In a statement, the White House said:
“Congress approved term limits for the presidency over 75 years ago, and President Biden believes they should do the same for the Supreme Court. The United States is the only major constitutional democracy that gives lifetime seats to its high court justices.”
It added: “Term limits would help ensure that the court’s membership changes with some regularity; make timing for court nominations more predictable and less arbitrary; and reduce the chance that any single presidency imposes undue influence for generations to come. President Biden supports a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.”
Others in his party favour expanding the court from nine to 13 judges by appointing further justices. They observe that the US Constitution is silent on the number of judges in the Supreme Court and argue there is no more reason to have nine justices than there is to have 13.
Of course, one suspects that the Democrats would be less anxious about the composition and structure of the Supreme Court if the 6:3 majority was in their favour. And it is true that Democrats were simply outmanoeuvred for two recent appointments by Republicans in the Senate, with a Republican majority in the Senate delaying the approval of one justice until Barack Obama left office and speedily approving another before Biden took office.
There is force in the view that Democrats should just take the hit and wait their turn. And if the court is expanded to 13, what objection will there be in principle to Republicans then expanding the court to 17, and so on. Appointing further justices appears a dead end.
But there would be merit in Biden’s proposal of a term limit even if the majority in the court was the other way around.
The UK has an age limit of 75 for membership of its Supreme Court. This means that there is a steady turnover of the UK’s most senior judges. Not a single current member of the UK Supreme Court was there before 2012, and only two of the 12 members can possibly still be in post in 12 years’ time. Indeed, three of the judges—a quarter of the total—will have to retire in the next five years.
This turnover is a good thing, for a Supreme Court should be about the law and not about personalities. Yes, from time to time there will be great and charismatic judges. There will also be appalling and self-promoting judges. But the character of an individual judge should never matter too much.
As with term limits, age limits raise the obvious problem of losing experience and wisdom to an arbitrary cut-off. But that concern has to be balanced against the need to prevent possible misuse of lifetime appointments.
The Biden proposal of a limit of 18 years, with an appointment every two years, means that no one president or Senate will be able to dominate Supreme Court appointments. It means that a markedly radical president—whether liberal or conservative, or even something else—will not benefit from a windfall of vacancies.
Unlike expanding—that is, packing—the court, introducing term limits makes sense from a non-partisan perspective. It is something that could and should appeal as much to a conservative faced with the prospect of a young liberal majority in the court as it does to the liberal facing the current conservative majority.
The only question is the length of the term. Eighteen years is a long time: four-and-a-half presidential terms or three Senate terms. But it seems about right: most justices with the appropriate experience are appointed in their 50s and so it would fit with the current age profile of judges.
As the White House statement observes, there is a term limit for presidents—and this is imposed regardless of what the electorate may want. There appears no inherent reason why there cannot be term limits for others who derive their power from the text of the constitution. Of course, the implication is that there should also be term limits for legislators—and that is not a bad idea either.
