We the People: Lifetime appointments to the Supreme Court, why and should that change?

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: How long do Supreme Court justices serve?

As Supreme Court confirmation hearings for Judge Ketanji Brown Jackson wrap up in Washington, D.C., some are thinking about how she’d be able to shape the American legal landscape. A big factor in determining her influence is the amount of time she’ll spend on the court.

But if confirmed, just how long could Jackson serve on the court? How long could any justice spend on the court?

The answer is in Article III, Section I of the United States Constitution. It states, in part, that “judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour …”

While the words “lifetime appointment” aren’t mentioned anywhere in the constitution, Mary Pat Treuthart, Gonzaga University law professor, said the key phrase is serving “during good behavior.”

“It’s very open-ended,” Treuthart said. “There was no textual constraint placed on the length of terms for Supreme Court justices or even credentials for them, for that matter.”

While there is no explicit mention of a term constraint, it has been understood that justices are eligible to serve for the rest of their lives.

Many justices opt to retire after a while on the bench, such as Justice Stephen Breyer, whom Jackson is nominated to replace, and some have died while serving, including Justice Ruth Bader Ginsberg in 2020 and Justice Antonin Scalia in 2016. Justices also are subject to impeachment, but only one has been impeached in the court’s 230 -year history. Justice Samuel Chase was impeached by the House of Representatives in 1804, though he was later acquitted by the Senate and served until his death in 1811 .

Recent revelations that Justice Clarence Thomas’s wife, Virginia Thomas, sent texts in late 2020 to urge President Donald Trump’s chief of staff, Mark Meadows, to work to overturn the results of the 2020 election have led some activists, including Women’s March Executive Director Rachel O’ Leary Carmona, to call for Thomas’ impeachment, according to The Hill.

A lack of a code of judicial ethics for the Supreme Court makes impeaching a justice difficult, Treuthart said.

As for why the framers didn’t include term limits for justices, it’s all about politics.

“I think that the notion was, if the other two branches are going to be subject to the political winds, maybe this would be a ballast against that sort of politicization,” Treuthart said. “Some of the notions for lifetime appointments is so the Supreme Court rises above the fray and is less beholden to the political process.”

But the process in appointing a justice is already politicized to an extent, she said. A nominee comes from a president with a political alignment. Confirmation hearings like the one for Jackson, she said, have also become political.

“There’s a lot of grandstanding and showboating that goes into the selection process in ways that I suspect the framers could have anticipated, given some of the stuff that was happening during the Hamilton era, but they didn’t,” she said.

Over the past few years, some have argued for changes to the composition of the Supreme Court. While some favor changing the number of justices on the court, others say justices should be limited in how long they can serve.

Treuthart said supporters of term limits argue it would lower the stakes associated with the rare opportunity of nominating a justice and would result in a court that “wouldn’t be locked into an ideological position for long term” because of regular turnover.

On the other hand, more frequent changes in membership have a “potential loss in continuity and consistency,” she said.

Treuthart said supporters of sticking with lifetime appointments argue it would keep the judiciary separate from the political fray of the other two branches of government. The rarity of life appointments, however, “puts so much pressure on those individual appointments that they inevitably become politicized just at the same time that you’re trying to avoid politicization,” she said.

Treuthart said it would take an act of Congress or a constitutional amendment to impose term limits.

Congress has historically had some ability to regulate the federal judiciary, she said, but what their role could be in imposing term limits is unclear. If Congress were to pass a law dictating term limits, it could end up at the Supreme Court for review, she said.

A constitutional amendment would be a “safer” route, Treuthart said, but pushing an amendment requires a lot of buy-in in the form of supermajorities in Congress and of the states.

Treuthart said that while she understands both sides of the debate, she “would come down in favor of term limits.”

Other western democracies incorporate term limits into their judicial systems, she said, and “the fact that other democracies have made different choices, more recently than ours, is something that we should be mindful of.”