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THE ARGUMENT

Should US Supreme Court justices have term limits?

Read two views and vote in our online poll.

YES

Somaya Laroussi

Incoming Director of Outreach, March For Our Lives: Boston; youth organizer for RevereYouth in Action; Boston University sophomore, Revere resident.

Somaya Laroussi
Somaya Laroussi

Lifetime appointments to the US Supreme Court challenge the health of our democracy. The current Court fails to represent the identities of millions of people like me: people of color, religious minorities, Millennials, and Generation Z.

Since Justice Clarence Thomas, the longest-serving justice, was appointed in 1991, the nation’s populations of Latinx and Asian people have doubled. All but one justice joined the bench before I could vote, two of them before I was born. Life-long federal court appointments are not in keeping with traditional democratic principles in America.

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Justices in every state supreme court except Rhode Island’s do not enjoy lifetime tenures. It is time we extended those limits to the US Supreme Court. We can do that by adopting a current proposal limiting justices to an 18-year term.

High-stakes lifetime appointments have exacerbated bipartisan division. Then Senate majority leader Mitch McConnell blocked a hearing for Merrick Garland when then President Barack Obama nominated him eight months before the 2016 election, but allowed then president Donald Trump to fill a vacancy shortly before last November’s election. Despite losing the popular vote in 2016, Trump appointed three justices, and his appointment of Amy Coney Barrett created a durable 6-3 conservative majority.

The current court is not responsive to contemporary political realities. Narrow majority decisions have promoted discrimination and rebuked popular opinion. A narrow 5-4 majority upheld the infamous “Muslim Ban.” The federal courts continue to hear challenges to Deferred Action for Childhood Arrivals (DACA) and reproductive rights, despite 74 percent support for permanent legal status for immigrants who came to the US as children and 60 percent support for reproductive rights.

The pandemic, resurgent xenophobia and racism, and the climate crisis heighten the urgent need for a responsive democracy. Our communities need bold legislation like the Green New Deal, and immigration executive orders to keep people safe and families whole. Let’s not repeat the mistake of the Great Depression by allowing progressive measures on such needs as immigration reform, climate change, and pandemic relief to be struck down by a reactionary court.

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Eighteen-year term limits, to account for every generation of youth, would lead to a forward-looking Supreme Court.


NO

Lawrence Friedman

Professor of law at New England Law / Boston, where he teaches courses in constitutional law and privacy law

Lawrence Friedman
Lawrence FriedmanJoel Haskell/© 2008 Joel Haskell, All Rights Reserved

Progressive critics have challenged President Joe Biden to blunt the effect of his predecessor’s numerous lifetime appointments to the federal judiciary, and in particular Donald Trump’s three appointments to the U.S. Supreme Court. Some proposals have focused on term limits for the justices — for example, limiting their tenure to a block of 18 years or so.

Efforts to tinker with the structure of the Supreme Court and the lower federal courts are not new. Since the earliest days of the republic, Congress, whose reach extends to such matters as the number of federal judges and their jurisdiction, has experimented with reforms to the court system. The number of justices on the Supreme Court, for instance, has not always been nine.

Judicial term limits, however, would represent a different kind of experiment. Because life tenure is a constitutional requirement, such limits would probably require an amendment — an unlikely prospect. And, while the framers might not have imagined a day when judges would regularly serve for three or four decades, still there is an argument for the value that inheres in lifetime appointments. This security gives judges, and especially Supreme Court justices, the freedom to take the long view — to approach their work with an eye to promoting the consistent and predictable development of the law, rather than the creation of rules that address only the crises of the moment.

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For his part, President Biden has not endorsed term limits for Supreme Court justices or, indeed, any federal judge. For now, he has signaled an intention to push judicial appointments along in the same way as his predecessor, by working with the majority in the Senate to get as many nominees through the process as possible. The legitimacy of the federal judiciary will be enhanced if Biden is able to fill openings with judges who will provide a counterweight to Trump’s appointments. Institutional moderation becomes the third branch, emphasizing its role as neutral arbiter of legal disputes. Such moderation is a goal the framers likely would have favored. It is a goal, moreover, that a President who takes the judicial appointment process seriously can achieve without risking the unpredictable consequences of ending life tenure.

As told to Globe correspondent John Laidler. To suggest a topic, please contact laidler@globe.com.

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