Public approval of Supreme Court has plummeted; term limits may be the solution

There was a time, not so long ago, when the U.S. Supreme Court was among the most esteemed institutions in the country.

The court’s sharp move to the right, combined with disclosures of egregious ethical problems involving Justices Clarence Thomas and Samuel A. Alito Jr., have rapidly and dramatically changed that picture. That, in turn, has focused new attention on an idea that has attracted support from constitutional scholars on both the left and the right: term limits.

The current Republican leadership in Congress has little interest in changing the status quo — they’ve finally gotten the deeply conservative majority on the high court that the GOP has sought for decades. So there’s no likelihood of a term-limit measure passing this year or next. But as the court’s standing continues to slide, the term-limit proposal — which attracts backing from opinion elites as well as the broader public — could be an idea whose time has come.

There should be no question about the urgency of the problem.

As recently as three years ago, two-thirds of Americans said they approved of the way the court was handling its job, polling by Marquette University Law School found. Today, as the justices move into their annual end-of-session rush of major decisions, the share approving of their work has tumbled to 41%, according to Marquette’s most recent poll. It’s even lower in some other surveys — a Quinnipiac University survey released Wednesday showed only 30% approving of the court’s work.

Views of the court have soured in both parties, although the steepest drop has come among Democrats, especially since last year’s decision in Dobbs vs. Jackson Women’s Health, which ended the nationwide guarantee of abortion rights that had stood for nearly half a century.

Justices no longer seen as impartial

The reasons for the plunge aren’t hard to see: The Supreme Court’s standing has always relied on a bit of a conjurer’s trick, and in recent years, the magic has worn very thin.

In a democratic society, letting nine unelected officials decide critical public policy questions is a tough sell. The court’s power has depended on convincing Americans to see the justices as impartial decision makers handing down rulings based not on politics, but on law.

The number of Americans willing to believe that has dwindled.

Sixty-eight percent of Americans now say the court is mainly motivated by politics, compared to 25% who say the motivation is mostly law, according to the new Quinnipiac poll. In 2018, Quinnipiac found a near-even split on that question; the share who believe the court’s motivations are political has risen every year since.

Several events have shifted the public’s view:

Start with a series of bitterly contentious confirmation battles. In 2016, Republicans led by Sen. Mitch McConnell of Kentucky staged a 293-day blockade of President Obama‘s effort to put then-Judge Merrick Garland on the court. Then, in 2018, came the televised battle over President Trump‘s nomination of Brett M. Kavanaugh. Two years later, McConnell led the rushed effort to confirm Justice Amy Coney Barrett just days before the 2020 election.

Those highly publicized fights cemented the public’s view of the court as Republican-dominated.

Since then, the court’s conservative majority has reinforced that view by aggressively asserting their power. At the close of last year’s term, they issued hugely consequential decisions moving the law sharply to the conservative side on abortion, guns and the nation’s effort to battle climate change.

“They crammed a decade of social change into three days,” said Michael Waldman, president of the New York-based Brennan Center for Justice and author of “The Supermajority,” a new book on the high court.

The decisions, especially on abortion, got the attention of the public, which normally does not focus much on the high court. The abortion ruling, in particular, has proven to be deeply unpopular.

The share of Americans who see the court as too conservative has doubled since 2016, polls by Gallup and other organizations have found. Last year, Gallup found 42% of Americans viewed the court as too conservative, compared with 18% who saw it as too liberal — reversing a view that had prevailed for most of the preceding two decades. The share seeing the court’s ideology as “about right,” 38%, was the lowest Gallup had found in three decades.

Finally, reports that Thomas and Alito, the court’s most conservative members, did not disclose sumptuous gifts from wealthy benefactors with interests before the court have further damaged the institution’s reputation.

Term limits as a solution

The increasing length of time that justices serve makes their problems worse, isolating the court from public accountability.

From the founding of the country through 1970, Supreme Court justices served for an average of just under 15 years, but the average tenure began to balloon in the 1970s and has roughly doubled, law professors Steven G. Calabresi and James Lindgren of Northwestern University wrote in a 2006 law review article which advocated term limits for the court.

The last four justices to leave the court — two by retirement, two by death — served an average of 29 years.

Longer terms are no accident. Presidents of both parties, seeking to maximize their impact on the court, have been seeking younger nominees. In the past half century, 17 people have joined the court. Only one was older than 55 when confirmed — Justice Ruth Bader Ginsburg, who went on to serve 27 years before dying in office. In addition, justices often try to time their retirements to ensure that a president of their own party can replace them, stretching their tenure as a result. And, of course, people live longer now than when the Constitution was written.

All that, as Calabresi and Lindgren wrote, has reduced the number of vacancies, limiting the one process — the appointment of new justices — that the Constitution provided as a democratic check on the court’s power.

They proposed a constitutional amendment setting an 18-year limit, with terms ending every two years, guaranteeing that each president would have two vacancies to fill in every four-year term.

The Brennan Center advocates a similar plan along with an enforceable ethics code for the justices. They argue term limits could be put in place by statute, rather than requiring an amendment. Under their plan, justices could continue on the federal bench for life, but would only serve as active members of the Supreme Court for the first 18 years.

Calabresi is one of the country’s leading legal conservatives, and a co-founder of the Federalist Society, which has played a leading role in placing conservatives on the federal bench. Waldman is a prominent liberal, and the Brennan Center is a leading source of policy ideas and advocacy on the left. The fact that both have advocated for term limits illustrates the broad support the idea has among legal experts.

The public agrees: Term limits routinely get approval of two-thirds or more in polls.

“There’s a broad sense that the court is unaccountable and political, and that’s sort of a toxic combination,” Waldman said in an interview.

For the good of the court — and the role that it can play as a stabilizing force in a deeply polarized society — it’s time to try to fix that toxicity before it gets worse.

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