Supreme Court Reform: Would Ro Khanna's Term Limit Proposal Work?

Controversial decisions by the Supreme Court in late June have dealt a blow to programs aimed at increasing racial diversity in college admissions, LGBTQ+ rights and the ability of 43 million Americans to get some relief from their student loan debt — all a year after the high court overturned Roe v. Wade, eliminating the constitutional right to an abortion in the United States and leading to a flood of abortion restrictions and bans across the country.

The recent slew of decisions prompted a wave of criticism from liberals and supporters of diversity in higher education and the workplace — including Representative Barbara Lee (D-Calif.), who called the Supreme Court a “corrupt, right-wing court” — and reignited long-standing calls for reforming the judicial branch.

California Representative Ro Khanna (D-Fremont) led the call by reintroducing the Supreme Court Term Limits and Regular Appointments Act on June 30, specifically prompted by the Supreme Court’s decision that blocked the Biden administration’s plan to forgive student loan debt.

Taking aim at the current lifetime tenure of Supreme Court justices, Khanna’s bill aims to enact 18-year term limits for the justices and to “stop extreme partisanship” in a court he described as “regressive.”

However, congressional reforms to the Supreme Court — called the least accountable branch of the United States’ government by nonpartisan advocacy group Fix the Court — is an uphill climb, given Republican control of the House and the reluctance of even some Democrats (and independents like Sen. Kyrsten Sinema) to tamper with Supreme Court policies.

Keep reading for what to know about Khanna’s bill, its possible chances of success and what to know about reforming the Supreme Court.

Why don’t Supreme Court justices have term limits? Do other countries do this?

The Constitution says that Supreme Court justices “shall hold their Offices during good Behaviour,” meaning they have a lifetime tenure “as long as they choose and can only be removed from office by impeachment.” For example, former Justice Stephen G. Breyer retired at 83 last June, and had been on the Supreme Court since 1994. Ruth Bader Ginberg died at 87 in 2020, after serving for 27 years.

This is all according to Article III of the U.S. Constitution. And in drafting the Constitution, the framers harkened back to experiences with England and erratic decision-making from monarchs — according to Gabe Roth, executive director of Fix the Court, which advocates for non-ideological “fixes” that would make the Supreme Court more accountable. (Roth says he’s discussed the term limits bill with Khanna for years, and was part of the recent reintroduction announcement.)

Roth explains that in the late 1700s, King George III himself was firing judges in United States colonies — which prompted state courts to write their own constitutions to say judges can hold their offices during good behavior. This line was then adopted in the U.S. Constitution.

“The U.S. is really different from other countries,” said Roth, “because our Constitution is so old, and it traces its roots to the 1700s.” The roots of our current Supreme Court situation lie, says Roth, with government dysfunction in England and this growing conflict between King George and the colonies. “And that’s — to me — not a great reason to maintain the practice of life tenure,” he said.

Roth notes that “most countries have a mandatory retirement age or a retention election or a term limit or some combination thereof.” For example, the retirement age in Brazil, Canada and the United Kingdom is 75. In South Africa (PDF), it’s 70. And in Germany, it is 68 years old.

Other democracies have reflections of increased life expectancy in the modern age and accumulation of power by judges, and needed ways to reduce those things by instituting term limits or mandatory retirement ages.

In contrast to the Supreme Court, almost all U.S. states have a mandatory retirement age or retention election or term limit for its state court judges. “So the U.S. is not only an outlier globally — it’s an outlier within the various systems of the judiciary that are set up within the [U.S.],” Roth said.

So, can a Supreme Court justice be impeached?

Yes — but only one justice has ever been impeached.

In 1805, the justice in question, Samuel Chase, was under fire for partisan leanings but was acquitted by the Senate. So he was never removed from office.

More recently, in 1965, Abe Fortas was a justice appointed by President Lyndon B. Johnson. In the following years, Fortas was accused of accepting money from a financier and resigned in 1969.

Impeaching a Supreme Court justice, said Roth, is “the same process as impeaching and removing a president.”

“We need a majority of the House to impeach, which is like an indictment, essentially. And you need two-thirds of the Senate to vote to remove,” Roth explained.

“The lower court judges have been removed via impeachment for things like taking bribes or acting erratically in the courtroom,” he said. “But just given how partisan our country and our House and Senate are, I think it would be very difficult in the Senate … to get 67 senators to agree on anything, let alone removing a Supreme Court justice.”

“The way that Supreme Court justices are going to leave the court, I think it’s going to be mostly death or retirement and old age,” he said.

Who is on the Supreme Court now?

There are nine justices on the Supreme Court, most of whom were appointed by Republican presidents — one from George H.W. Bush, two from George W. Bush and three from Donald Trump. These justices are, in order of appointment, John Roberts, Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson.

The Court recently has also been facing controversies outside of its recent rulings. A series of investigations from ProPublica, a nonprofit, non-partisan news organization, found conflicts of interest among several conservative justices who took lavish gifts from conservative activist donors. The articles specifically highlighted Clarence Thomas and Samuel Alito.

What does Rep. Khanna’s bill propose for the Supreme Court?

Rep. Ro Khanna’s bill aims to enact 18-year terms on the Supreme Court justices to “restore judicial independence” — after which justices could then continue their work on lower courts.

“Going forward, the bill would create a regular process to allow presidents to nominate a new justice to the Supreme Court every odd year — so two justices per four-year term,” Rep. Khanna said in a release explaining a past iteration of the bill. “Justices would no longer have an incentive to strategize and plan their retirements around whichever party holds the White House. The goal of this bill is to restore judicial independence and ensure that justices are not too far out of step with the current generation.”

“Our Founding Fathers intended for lifetime appointments to ensure impartiality,” Khanna said “The decision today (on student loans) demonstrates how justices have become partisan and out of step with the American public.”

“For many Americans, the Supreme Court is a distant, secretive, unelected body that can make drastic changes in their lives without any accountability,” said co-sponsor Virginia Rep. Don Beyer. “I have long supported reforming the Supreme Court to limit terms to end lifetime tenures and ensure the court remains a fair and impartial arbiter of justice. Our bill would achieve this and help restore balance to a heavily politicized court.”

In a release, Khanna said he was not worried about the 18-year limits further politicizing the court, as some opponents claim.

“The regular appointment process will help judges rotate more frequently instead of justices waiting to retire based on which party controls the White House and holds a Senate majority,” he said. “Confirmation hearings will also become an expected and regular part of the process instead of a life-and-death partisan fight that only further erodes the public’s trust in the court.”

Fix the Court’s Roth says 18 years is a standard number referenced and debated among law experts.

“You have nine justices and new justices added every Congress, every two years. Nine times two is 18,” he explained, saying the 18-year plan became more popular during the recent 11-year period that saw no justice turnover from 1994 to 2005.

Is there support for this kind of Supreme Court reform?

A NPR/PBS NewsHour/Marist national poll from April shows 68% of Americans support term limits for Supreme Court justices. In fact, a majority of Republicans, Independents and Democrats who responded to the poll all agreed that there should be term limits.

Currently, Khanna’s bill is supported by mostly Democrats, like California Rep. Rep. Barbara Lee and Michigan Rep. Rashida Tlaib. But term limits or some kind of Court reform have been a Republican talking point in the recent past, Roth said, citing essays written by Missouri Sen. Joshua Hawley and Texas Sen. Ted Cruz. In 2016, then-Republican presidential candidates Ben Carson, Mike Huckabee and Rand Paul also endorsed the idea.

“Fast-forward nine years and now it’s only Democrats talking about term limits,” said Roth. “It’s interesting how the issue has been sort of flipped on its head from a partisan perspective.

“(But) this is an apolitical reform. There is no partisan balance to an 18-year term. It would apply to future justices that are appointed by Democratic presidents and Republican presidents alike.”

“Currently the bill is Democrats only, but there’s no reason it can’t be a bipartisan effort,” Roth said.

What are the arguments against SCOTUS term limits?

In 2021, President Joe Biden formed a commission to discuss court reform. The commission was bipartisan and included former federal judges, practitioners and advocates. However, the commission did not have a consensus or recommendations for the court in its final report, according to The Wall Street Journal. Read the entire report here (PDF).

One of the commissioners, Adam White, a senior fellow at the conservative think tank The American Enterprise Institute, said in a statement that term limits were problematic “especially when they are intended to allocate appointments on the calendar of presidential terms” (PDF).

“By tying Supreme Court vacancies and appointments directly and exclusively to the outcomes of presidential elections, a term-limits framework would further corrode the appearance of judicial neutrality and independence, making the Court a spoil not just of politics, but of presidential politics exclusively,” he wrote.

Is there a chance of Ro Khanna’s SCOTUS reform proposal actually passing?

This is the third time Khanna has brought this bill to Congress, introducing it in 2020 and 2021. And experts, like Cody Harris, partner at San Francisco law firm Keker, Van Nest and Peters, find it hard to see a bill like this passing — at least right now, in 2023.

“We’re talking about the Constitution here. The Constitution can be amended,” Harris said at a recent town hall event focused on the Supreme Court, at Manny’s, a community space in San Francisco. “It’s been amended plenty of times and 27 times, and it could always be amended further: for good or ill.”

“It’s very hard to amend the Constitution,” said Harris — but, he added, it’s “not impossible. And if enough states, enough people in enough states want to change some of this stuff, they can.” (Skip to 1:27:30 in the above Facebook Watch video to see a panel of legal experts, including Harris, debate this issue.)

Roth agrees with that perspective, not expecting Ro Khanna’s bill to advance with a Republican-controlled House at this tie.

“Republicans have said that they don’t want to reform the court, which is (what I) think is a a historical view. There have been Republicans in the past who have wanted to reform the court,” Roth said.

“But I still think it’s an important marker to put down to say, ‘Look, we shouldn’t have nine individuals with this much power for this long.’”