Balkinization: Should SCOTUS Term Limits Be Imposed Through Constitutional Amendment? Americans Don’t Care Much

Should SCOTUS Term Limits Be Imposed Through Constitutional Amendment? Americans Don’t Care Much

Guest Blogger

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Kevin L. Cope and Mila Versteeg

Professor Sanford Levinson is a long-time critic of both the U.S. Constitution and the Supreme Court as described therein. Almost two decades ago, Levinson argued that imposing term limits on justices was “an idea whose time has passed.” He endorsed non-renewable 18-year terms with full pensions, though he is also open to, instead of full retirement, “circuit riding,” in which justices could hear only lower-court cases, while formally retaining their posts (Levinson 2006, 376).

It seems the idea of term-limiting Supreme Court justices is gaining momentum. In recent years, several conservatives have endorsed the proposal. The bipartisan Biden Commission’s final report explores the idea as a way to bolster the Court’s ideological balance. The report notes that the notion of SCOTUS term limits is popular among the American public and quotes Supreme Court practitioners who think that imposing 18-year, non-renewable terms “warrants serious consideration.”

The Commission doesn’t ultimately endorse that (or any) substantive reform proposal. But it does consider how term limits could be procedurally pursued, if at all. While there was no consensus on the constitutionality or general prudence of term limits by statute, some members of the commission believed that “any statute would raise so many difficult constitutional and implementation questions” that proceeding that way would be “unwise.” These commissioners reasoned that a statute might require the Court itself to rule on the law’s constitutionality, undermining the Court’s own legitimacy. “No matter which way the Court came out on the question,” they say, “the Court’s legitimacy, or perceptions of its legitimacy, would be undermined.” Levinson doesn’t necessarily disagree, but he seems to think it’s probably worth it, as requiring amendment would surely “doom[]” reform altogether.

Do Americans Care How the Court is Reformed?

Whether by statute, amendment, or some other method, the support of the U.S. electorate would be crucial to any Court reform. So what do Americans think of these proposals? We know that Americans view the term-limit proposal more favorably than, say, “packing” the Court by appointing more justices. But existing polling data do not gauge whether respondents care how the change is pursued. That question is important: as Levinson notes, it could make or break any hope for reform.

We attempted to explore this question through a survey experiment, which was embedded in a larger comparative project about liberal democratic backsliding and institutions. We presented citizens in several countries including the United States with real-world proposals that undermined key parts of the constitutional order, such as reducing the power of courts or removing presidential term limits. But we randomized what respondents were told about how the reform is pursued. The goal of the project is to explore whether citizens care how “abusive” reform comes about (Dixon and Landau 2021). Our ultimate objective is to understand whether and to what extent the electorate rewards a pretense of legality for would-be autocrats. But one portion of this research, that related to Supreme Court term limits, is worth highlighting here.

Our U.S. survey experiment was conducted in the weeks before the 2020 presidential election on a representative sample of 4,000+ Americans. Respondents were told about SCOTUS term limit proposal. But before they were asked for their opinion (on a 4-point scale), they were randomly divided into four groups that were provided with different information on how the reform would be pursued.

1)    First group: 18-year terms would be imposed by constitutional amendment.
2)    Second group: Congress would pass legislation that requires judges to retire from the Supreme Court after 18 years but take senior status and sit on the lower courts. The Constitution would arguably not be violated, as the justices would continue to serve on the federal bench.
3)    Third group: same as the second, but it was asked to imagine that the Supreme Court had ruled this law constitutional.
4)    Fourth group: Biden would order justices to retire after 18 years and have federal officials arrest any who refused. (This possibility will strike many as far-fetched, but, of course, it isn’t from a global perspective.)

The crux of this survey experiment is that it allows us to compare levels of support between these different groups. If these different groups of respondents rate the proposal differently, then how it was pursued matters. For all respondents, we followed up with a question that proposed that Biden would reform the Court in a different manner: through court-packing.

Support for SCOTUS Term Limits

Here’s what we find. First, support for imposing term limits on Supreme Court justices is high: about 59 percent of Americans supports reforming the Supreme Court by imposing term limits. About 42 percent opposes.

To our main point, do people care how the reform is pursued? The short answer is: not very much. As the graph below shows, partisanship predicts support for term limits far better than how it is pursued. Only 40 percent of those who give President Biden low marks supports the proposal. But among those who give Biden high marks, 67 percent approves of the proposal.

While the main predictor for support for Court reform is support for Joe Biden, how the reform is pursued matters a bit. Those who support Biden prefer any of the constitutional routes over the constitutionally dubious one, arresting justices. These differences are statistically significant, but they pale in comparison to the difference observed between partisan preferences. Perhaps most notably, for Biden supporters, there is no significant difference in levels of support for amendment versus simply pursuing reform through legislation: support is roughly the same. This means that the democratic base is with Levinson; they want term limits, and don’t care much if they are pursued by amendment or legislation.

But those who oppose Joe Biden also do not care very much how reform is pursued. Their approval is roughly the same for term limits imposed through amendment, legislation, and even unconstitutional means.

What to make of this? We believe it means that, whatever reasons exist to insist on amendment, political approval is not among them. The political payoffs from pursuing amendment over legislation seem to be little to none.

Support for Court-packing

We also asked all respondents how they view court-packing and rate it on the same scale as the term-limit proposal. It turns out that Democrats rate court-packing roughly the same as SCOTUS term limits. 67 percent of Biden supporters somewhat or strongly support term limits; 68 percent supports court-packing (Biden supporters support term limits imposed through unconstitutional action slightly less than through court-packing, but even this difference is small).

But partisan differences are far larger for the court-packing proposal than the term limit proposal. While 40 percent of those who oppose Biden strongly or somewhat approves of term limits, only 18 percent supports court-packing.

We posit a reason for this discrepancy. In considering a change to the institution of the Supreme Court, the utility function of most people—whatever their ideology or partisan affiliation—contains two primary elements: preserving institutionalism and achieving ideological advantage. Institutionalism entails a desire to maintain the “rules of the [liberal democratic] game,” which, as many have noted, promotes fairness, stability, and predictability in society. Ideological advantage entails realizing policy preferences, like (not) recognizing certain rights. Everyone values both institutionalism and ideological advantage, albeit to different degrees, and those values lead different people to prefer different approaches to reform or maintaining or the status quo.

We can assume that, all else equal, people value approaches that seem like fair play over those that seem unfair, i.e., that undermine institutions. Moves like using established processes to amend the constitution or pass legislation in Congress seem like the former: they’re consistent with the rules of the game. Moves like ignoring the courts, arresting judges, and court-packing seem like the latter: they strike people as undermining valued institutions. This means that these three approaches are likely to receive less support, all other things being equal.

But other things are not equal. As to left-leaning Biden supporters, they value implementing reforms to create a Court that will embrace values like abortion rights, gay rights, and progressive racial and gender policies. Right-leaning Trump supporters conversely value reforms that do the opposite. The first set of proposed reforms in our experiment—all involving term limits—likely strike people as having a more-or-less balanced effect on Court ideology. Our descriptions imply that the term limits will be applied even-handedly, likely to all sitting and future justices, meaning the ideological payoff is neutral. But in the context of a Biden initiative, court-packing especially will strike respondents as delivering a big policy payoff for the ideological left.

Therefore, for left-leaning Biden supporters, the court-packing proposal is institutionally questionable but ideologically attractive. These two may be cancelling each other out, such that on net, it’s viewed not much differently than the other proposals which are ideologically neutral but institutionally more palatable. For right-leaning Biden opponents, court-packing is not only institutionally suspect but also ideologically disastrous, leading to the lowest levels of support.
Thus, while a constitutional amendment would be (by definition) constitutional, the constitutionality of a statute that relegated justices to circuit riding after 18 years might be more dubious. The Commission’s concerns about undermining the Court’s legitimacy in ruling on its own term limits are surely well-taken. And there’s certainly a risk the Court would rule that the move is unconstitutional, taking reform efforts back to square one and squandering time and political capital.

But if the concern is only about rallying the electorate’s support for the measures, it seems there’s little difference between the two. Likewise, especially since the courts would have given it their imprimatur if the rule survives review, it means that the legitimacy of the resulting rules wouldn’t differ much. If so, there would be little gained by pursuing constitutional amendment, with its possibly insurmountable political hurdles.

Kevin L. Cope is an Associate Professor of Law, Associate Professor of Law and Public Policy, and Faculty Affiliate at the Woodrow Wilson Department of Politics at the University of Virginia. You can contact him at kcope@law.virginia.edu.

Mila Versteeg is the Henry L. and Grace Doherty Charitable Foundation Professor of Law, Director of the Center for International & Comparative Law, and Director of the Human Rights Program at the University of Virginia School of Law. You can contact her at versteeg@virginia.edu.

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