In the wake of Justice Ginsburg unfortunately passing away, calls to expand the Supreme Court have spread widely. Those proposals have a long history dating back to the administration of Franklin D. Roosevelt, but also carry consequences that most observers have not contemplated.

A better way to liberate the Court from the shackles of the past would be to end judicial life tenure and impose staggered 18-year terms for Supreme Court Justices.

Several potential solutions could supplement nomination & confirmation with a formal post-appointment check on the Court. The most crude — FDR’s — entails a legislative statute expanding the number of seats on the Court. A more sophisticated approach requires mandatory retirement for Justices, perhaps at the age of 70. Finer still is a regular schedule of retirements among Justices with staggered terms of service, so that each President appoints a new Justice every two years.

Portrait of the Justices of the US Supreme Court wearing their black robes while sitting in front of a red curtain.

Either a mandatory retirement age or fixed judicial terms would be immune to politicization. Unlike expanding the Court, both measures are substantively neutral: neither could be abused in order to subvert the Court’s independence or politicize its jurisprudence.

Alexander Hamilton discussed the centrality of judicial independence in the constitutional design in The Federalist №78. The judiciary is the crux on which liberty rests. Its independence is critical to enable judges to make decisions that fly in the face of social consensus—like the 1954 Brown v Board decision that began the process of desegregating the South.

But judicial independence has long been compromised, particularly by politicized nomination processes and strategic appointments of younger Justices. Meanwhile, while Republican presidents have swung for the fences by appointing extremely ideological Justices, their Democratic counterparts have settled for nominating prosecutors of color and calling it a day.

Between a mandatory retirement age and fixed terms, the latter is the better option. Mandatory retirement seems to ensure capable deliberation by preventing Justices from serving beyond their intellectual prime or past the time when they lose touch with the country’s changes. However, the incentives of a mandatory retirement regime would encourage Presidents to appoint younger and younger Justices in order to maximize the nominees’ time and influence on the bench.

In contrast to a mandatory retirement age, staggered terms would achieve the same goals (adding a post-appointment check without risking political co-optation), while avoiding the discouraging incentives of a mandatory retirement age. 18-year terms for Supreme Court Justices would also ensure that Justices enjoy an opportunity build institutional memory and expertise, yet still remain attuned to the social realities of the society they have great influence over.

While previous proposals envision implementing such a schedule many years after securing a legislative consensus, we favor a more immediate implementation. If Congress were to legislate 18 year-staggered terms, the first functional impact would be the removal of Justice Clarence Thomas.

While forcing Justices off the bench may seem alien, there is no positive basis for lifetime judicial service. Nor, for that matter, is it constitutionally required. The “Good Behaviour” Clause of Article III has traditionally been interpreted to require life tenure, but that reflects a self-serving interpretation by the very branch whose entrenchment stands at issue. Its purpose was to insulate the judiciary from political influence.

The Founders appropriately wanted judges to be free from political influence, but they could not possibly have contemplated Justices remaining on the bench for several decades, if only because life expectancies have expanded so dramatically since then.

As long as judges enjoy life tenure, expanding judicial life expectancies carry a crucial implication: they increasingly shackle our nation’s jurisprudence to the past.

Judges who serve long past normal retirement years can’t remain attuned to changing social realities. For instance, Justice Powell infamously claimed in 1986 to have never met a homosexual while deciding to demean LGBT rights, even as he relied on the labor of a gay clerk. Even when their health remains strong, judges inevitably lose touch with society. That’s a problem since they are empowered to limit our democratic decisions.

In any event, the goal of insulating judges from political influence can be achieved through better means than life tenure, without ensuring judicial calcification.

Staggered terms offer that opportunity. And because they present a neutral and predictable schedule for retirements immune to political influence, they can be reconciled with the Good Behaviour Clause.

Functionally, Congress could implement such a plan by mere statute. It would likely trigger litigation to resolve its constitutionality, giving Congress years to undergo the nomination & confirmation process and force the longest-serving Justice (at the moment, Justice Thomas) to retire in order to guard the institution’s legitimacy.

Staggered terms ensure judicial turnover without undermining judicial independence. They would introduce regularity and predictability in the nomination & confirmation process, rather than allowing the viability of our Republic to rest on the health of octogenarians.

We do need to protect our courts from the danger of politicization. But packing the Court isn’t the way to do it.