Interviews by Amy E. Schwartz
David Tatel served as an associate judge on the Court of Appeals for the D.C. Circuit from 1994 to 2024. He is the author of Vision: A Memoir of Blindness and Justice.
Noah Feldman is the Felix Frankfurter Professor of Law at Harvard Law School. He is the author most recently of To Be A Jew Today: A New Guide to God, Israel, and the Jewish People.
Should there be term limits for Supreme Court justices?
Yes, but. I’ve reluctantly come to think there should be term limits, but it’s a close call. On the plus side, term limits would help keep the court fresh. Turnover is good for any institution, and it would help prevent justices from becoming too inflexible as they get older.
A second advantage is that it would take the pressure off the president to make the youngest possible appointments, to ensure that a justice can serve as long as possible. Judging requires maturity and broad experience, and there’s pressure now to appoint people in their 40s.
Third, it would allow every president to participate in appointing justices to the court. Under the idea that’s floating around, there would be 18-year terms. Every two years, a justice’s term would expire, and so every president would eventually get two appointments, one every two years. As our country has become more ideological, that would help rebalance the institution. After all, Donald Trump has had three Supreme Court appointments so far, and Jimmy Carter got none.
On the flip side, the disadvantage is that many judges mature and become better judges over time. Eighteen-year terms would cut that process short. I was a better judge in my last ten years on the Court of Appeals for the D.C. Circuit than I was in the first ten years. It was a function of experience; I was becoming more mature, with a deeper understanding of the law.
If there were term limits on the D.C. Circuit, I never would have had that third decade.
It’s a close call, but turnover is good for any institution.
Overall, though, I think the advantages of term limits for Supreme Court justices outweigh the disadvantages, but as I said, it’s a close call. I’m in favor of it because the country and the courts have become more ideological, and term limits might reduce that. Do I think it’s going to happen? No.
Would the Supreme Court judge more justly with limits on its power?
My hope is that the court would become less political and return to judging. The combination of changes would reduce politicization, and that might produce better judging.
Would a term-limited court have produced different results historically?
I think so, but it’s impossible to say.
As a practical matter, is our system designed so this change can’t be made?
That makes it sound a little too intentional, but in a way, yes. The Framers made the Constitution difficult to amend, and we haven’t done it in decades. It’s really hard. Many people think that’s a real flaw in our system, because there are so many problems we can’t fix: the Electoral College, the structure of the Senate, a whole series of things that the filibuster and divided government make unlikely we’ll ever address. In a way, though, it’s good. Why did they create three separate branches of government? To make it difficult for government to act. Separation of powers ensures that the government can act only with the support of all its branches. The fact that it’s difficult is a strength of our system, up to a point; after that, it’s a weakness. When you look at political gerrymandering, a divided Congress, and a Supreme Court with expanding power, all these things have combined to make it extremely difficult for our system to function. It’s a huge test.
I think it’s unlikely that Congress will impose term limits as long as we have a filibuster and a divided Congress, and even if it did, I think the court would declare it unconstitutional, and I lean toward thinking the court would be right. And it’s impractical to think we’d ever amend the Constitution.
What’s special about judging?
Judging is different from the executive and legislative branches, and the differences are substantive and important. Judges are not policymakers, unlike members of Congress, who vote yea or nay.
They have to apply the law to the facts before them and to write opinions that explain the reasons for their decisions, so the public will have confidence in what they are doing. The separation of powers depends on our maintaining that difference. If we don’t like the way members of Congress vote, we can vote them out, but judges aren’t accountable politically—their only accountability is their ability to persuade the public that they are in fact judging, not making policy.
Should there be term limits for Supreme Court justices?
No—not under current circumstances. The goal in making Supreme Court appointments should be to reduce the degree of partisanship associated with them. Limiting their terms, on its own, won’t achieve that objective. Appointments would still be made by whoever was president when a justice retired. So justices could still retire early, when a president they liked was in office. You probably couldn’t coerce a justice to remain for a full term. So the term limits wouldn’t address the most pressing contemporary concern, politicization of the process.
Term limits might disincline presidents from the current practice of choosing younger justices in the hope that they will serve a very long time on the court. That isn’t inherently bad; it’s good for an institution to have some people in their 40s and 50s, not in the late stages of their careers. Term limits would perversely encourage the appointment of older justices.
Term limits don’t mean a court can’t be completely politicized.
A great many justices have done their most important, historically significant work toward the end of a long career on the court. John Paul Stevens, one of the longest-serving justices ever, came into his own on the court in his last decade there. Justice Anthony Kennedy, who was appointed by Reagan, became gradually more liberal over his career and delivered some of his most historically significant opinions—including marriage equality—in his final decade. Justices mellow and become more liberal with age, more frequently than more conservative. Oliver Wendell Holmes, one of the greatest and most influential justices, became steadily more liberal in his decisions, and some of his most significant opinions came toward the end of his career. He wrote his famous Abrams dissent, which founded modern free speech law, when he was 78, and then he stayed 12 more years on the court, to the age of 90, with many important cases including Missouri v. Holland, which invented the idea of the “living Constitution.”
Would the Supreme Court judge more justly with limits on its power?
That depends on the source of those limits. If the justices were controlled by the political branches, that would greatly harm their ability to reach just outcomes. For the court to function as a check against majoritarian democracy, it needs to be independent of the influence of politics. Term limits aren’t a limit on power in that sense.
Would a term-limited court have produced different results historically?
It’s very difficult to say, because it all depends on who would have replaced the judges who were absent. That’s the whole game. But in some specific instances, such as Holmes inventing modern free speech law, probably no one else could have done it. It required a degree of genius and constitutional chutzpah that very few people had. Term limits don’t mean a court can’t be completely politicized. Look at the Israeli high court, where three term-limited justices were to retire in January, just a few days after the court issued its most consequential ruling in decades, overturning the judicial reform legislation. It didn’t solve the ideological problem. And since then, no justices have been appointed to fill those spots.
As a practical matter, is our system designed so this change can’t be made? Opinions differ about this. I do know some reasonable people who think it could be done without a constitutional amendment. But the ultimate arbiters of whether that’s constitutional, if we tried it, would be the Supreme Court justices themselves. I incline toward the view that it would be unconstitutional, because the Constitution says the justices serve “during good behavior,” and that phrase has never been interpreted to mean “within term limits.”
What’s special about judging?
In a system that’s committed to the rule of law, we still need some human beings to apply it. Judges stand in a different relation to the law from the rest of us. We have a duty to obey a law, if it’s a just law, but they have the duty to apply and therefore to embody the law, if it’s to be a rule of law and not of men. A rule-of-law system can’t do without justices who are genuinely committed to applying the law sincerely. They’re the linchpin of any legal or constitutional system that’s based on rights.
The Bible sometimes refers to judges as elohim, which is the same word as the one meaning “gods.” (A litigant is said to come forward “before the judges,” using that word, in Exodus 21:6.) So my personal midrash on that is that we want our judges to apply the law, and if the law comes from God, we want them to apply the law according to the highest principles, as God would apply it if God were judging.
