Strict Scrutiny - We Need to Talk About Term Limits

Episode Date: September 10, 2026

In part two of our Hot Supreme Court Reform September series, Kate and the Brennan Center’s Alicia Bannon make the case for term limits for the Court. The idea has bipartisan support, but what would they look like in practice? And, crucially, does Congress have the power to impose them? Take the Strict Scrutiny survey.New Strict merch available here.You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

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She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet or for next. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this edition of our special bonus series, hot Supreme Court Reform September. And for this installment of our series, I am happy to be joined by returning guest Alicia Bannon, a senior director at the Brennan's Center for Justice, where she leads the center's judiciary program and its Colberg Center on the U.S. Supreme Court. Alicia, welcome back to strict scrutiny.

Thank you so much for having me. So we're really happy to have you, and as I just said, we are doing a series about Supreme Court reform. People, I think, have a sense that something has gone deeply wrong with this Supreme Court. There was a Gallup poll in late July that had Supreme Court approval at 33 percent at or near all-time historic low. So it is not just us who have the distinct impression that something is badly amiss. And we think it's important for conversations about the Supreme Court right now to focus on specific reforms to the Supreme Court. We will definitely continue on this show and in other venues to criticize the court in both general and specific terms.

But in addition, we wanted to bring listeners and viewers a series of episodes that were really laser-focused on specific potential reforms to the court, and our topic for today is term limits. Alicia, this is something that you've been thinking and writing about for quite some time, and I'm excited to get into it with you. But before we drill down on term limits, I want to take a step back and ask you to talk kind of generally about how you would characterize what is so wrong with the Supreme Court. Well, thank you so much for having me and for starting this conversation. I think it's a really important conversation to have.

I think in a fundamental way the Supreme Court is failing in the role it is supposed to be playing in our democratic system. It has been gutting the role of Congress. We saw that this term in the Calais decision where it eviscerated the Voting Rights Act, in the slaughter case, where it eviscerated independent agencies. The court's also been aggrandizing its own role. So we see that in its conduct on the shadow docket, where it has both kind of vertically, when you look at it, relationship with the lower courts. And then when you look at its relationship with the executive branch, it's both been behaving a way that's unprecedented and frankly inconsistent if you look at how it has engaged with the Trump administration as compared to previous administrations. And we're just seeing more broadly a lack of respect for the traditional constraints, things like precedent that are supposed to keep the court in its lane. And so I think across a whole bunch of arenas, we just see a court that's not playing the function that we need, it's play in our democracy. I think that's all exactly right. And I do think that what I find kind of hopeful about this moment

is that I think that that diagnosis is beginning to be more broadly. I don't know if broadly enough, but more broadly accepted. And so, so then I think the question is, are we stuck with the Supreme Court that we have, which is fundamentally disempowering other important institutions in government? and, as you said, asserting this enormous power for itself in ways that really throttle the functioning of democracy. Like, are we stuck with it or are there things that can be done? And I think the answer is emphatically, we are not stuck with this court. There is a lot that can be done. Some of it through just the ordinary process of legislation.

Some of it will raise questions about sort of constitutional soundness and some of it will not. And so I think the different kinds of reform proposals raise different kinds of questions. So I think there is value both in talking broadly about the Supreme Court and the need to fix what is broken, but also I think value, as I said earlier, in talking specifically about individual proposals. And so now let's turn to the individual proposal that you and your colleagues at the Brennan Center have spent quite a bit of time talking about and thinking about. And that is term limits for Supreme Court justices. So back in July, you and a couple of colleagues put together a 40-page memo titled Constitutional Analysis of Proposals for Statutory Supreme Court Term Limits. Now, that is, I will say, a fairly academic sounding title.

I am a law professor. I read things with titles like that all the time. But it sounds academic. But I do think that you guys decided it was important to make clear what the objections to the ability of Congress to impose term limits, look like and what the answers to those objections are and how making justices term limited actually does square with constitutional design if you do it right. So I do want to get into the constitutional weeds a little bit, but before that, can you talk a little bit about why,

in light of the problems that we have been talking about, term limits for Supreme Court justices are something that we should or maybe even that we need to pursue? So can you just give us the top line overview of the case for term limits? Absolutely. I think, and I think term limits, at least as we think about it, at the Brennan Center, is an important starting point for the conversation about court reform. It's really popular. Many polls over three quarters of Americans support term limits for Supreme Court justices, including a bipartisan majority. So I think one of the things that's really appealing about term limits is that it is a common sense solution. I think there's a basic principle. that no one should have that much public power for life, that that leads to a lack of accountability,

a lack of connection with ordinary life and ordinary people that's just not good for the functioning of our democracy. And if you think of at the starting point, a justice starting, we're looking at this stage of people who may be on the bench for 40 years, generational power in, and so I think one component of term limits and one reason why I think it's so popular, is that just basic notion of accountability. Another dimension of term limits, and I'll step back. Let me just explain the proposal in a little more detail. Typically how term limits proposals work is that you have an 18-year term for justices.

After that phase, the justices continue to be judges. They continue to hold their offices, but they move to a senior status where they're not hearing, at least most of the cases that the court is hearing. At the same time, you introduce a regularized appointment process. So once the system gets going, you end up with a process where every two years, the president will get a new appointment to the bench. And so in a four-year term, every president will get two and only two seats to fill. Regularizing the appointment process in that way is I think another big benefit of term limits because one of the problems that we're seeing today with the court is that we have a super majority that is completely unconnected to our public values. If you look at how elections have gone over time, right now, we should be seeing a court that is much closer as a roughly, you know, kind of 50-50 divide if you look at who's won our presidential elections over the past several years. And instead, we have this super majority. And so another benefit of term limits is it more closely ties the court

to our democracy to democratic values and lets it change over time as new presidents take power. Right. So a combination of strategic retirements and just the luck of the draw has meant that Republican presidents have been way overrepresented in the appointments that they have made in the last really half century. So for example, Barack Obama, two-term president, served for eight years, made two appointments in those eight years, I should say, had two justices confirmed in those eight years did, in fact, make a third appointment of Merrick Garland, who was never given a hearing and, of course, not confirmed. But so there are two justices appointed by President Obama. Justice Sotomayor and Justice Kagan. By contrast, in just his first term, President Trump was able to make three appointments to the court. And so those, you know, reflect enormously different influence on the trajectory of our law, even though Obama at the point that Trump finished his first term had served twice as long. And so there's lots of other kind of unevenness and asymmetry that has tilted in favor of more appointments by and more confirmations of Republican appointees to the court. But that's sort of a contingent fact of recent decades. But the larger point you're making, I think, Alicia, is that

it is just fundamentally undemocratic for people, for justices to serve for decades and to reflect the political will of a previous generation or two as opposed to of the present generation. And that's not to say that justices should serve for a year and turn over immediately, but this 18-year proposal kind of strikes a balance between kind of justices reflecting and channeling through the appointment process, the present popular will, but also a degree of stability and not excessive turnover on the court. So that, I think, is the sort of overarching philosophy of the proposal. Now, say a little bit more, if you would, about kind of how it would work. Absolutely. And I think just to add to that, one of the big advantages of a proposal like

turn limits is that it promotes a democratic accountability. It kind of addresses is that legitimacy deficit that we're talking about, but in a way that still protects judicial independence. So you're not targeting judges and saying, well, we don't like you. We're going to boot you off the vents. It's a regularized process that applies equally to all justices, but allows it to be more closely tied to the democratic process in a way that still respects the court's role. And so basically, as I was saying, if you have a nine-person court in 18-year terms, over time, you can end up with this regularized process. With respect to how those terms work, The proposals vary, but typically you have a dynamic where judges for the first 18 years, it will look essentially as it looks today. So justices will sit on the court, hear cases, decide what cases to take up, et cetera. And then after that point, the justices transition to a senior status. So again, they still hold their office. They're not getting kicked off the bench, but their role is changing. And so depending on the proposal, in some instances, the proposals say that those justices,

will hear cases on the lower court. They may continue to hear cases under the court's original jurisdiction. So those instances where the court is hearing cases as a trial court, they may step in when other justices need to recuse themselves. They may provide other sorts of administrative support to the court. So they're playing a role, but it's a different role. And I think one of the things that's really interesting that a lot of people don't know is that we actually already have a senior judge system that does apply even to Supreme

Court justices. And that's been in effect for about 100 years, we've had a senior judge system. And so the difference between that system and what we would have now is that the biggest difference is that instead of it being up to the judges to decide, okay, we're going to take this senior status. Instead, you have a regular schedule that's set by Congress that says at this phase, your role is going to change and you will take on this new senior role in the court. This episode of strict scrutiny is brought to you by Alloy Health. Dealing with menopause alone, it's not just you. Almost 50% of women wait three or more years before seeking relief from menopause symptoms.

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constitutional arguments. First, so if once this is phased in completely, say every president in like the first and third year of a single term gets to make an appointment, do these proposals account for the possibility of a Senate refusal to confirm and sort of what does happen if the Senate doesn't confirm? Doesn't that give the Senate the ability to just kind of thwart the way this scheme is supposed to work? So there's certainly still room for Senate gamesmanship, right? The Senate plays a role in our confirmation process. They have to confirm. firm justices in order to take the bench. But I do think that this reform can be done in a way that reduces the likelihood of that kind of obstruction for a few reasons. First off, I think there's some

just concrete steps you could take to improve the confirmation process, creating a fast track process that at least requires the Senate to actually do an upper down vote on these nominees. So what we saw, for example, in the Merrick Garland context was that they didn't even give him a hearing. They didn't even have to take a vote. So they were able to. to kind of avoid that accountability. So I think one thing you can do is you can set in place systems that would require the Senate to actually consider these nominees and vote on them. I also think you could potentially structured in a way where the process would happen in the first two years of the president's term so that you would have an intervening election where, again, there could be another opportunity

if you're seeing that kind of obstruction for voters to voice objections and push for confirmation. I think that The last thing I'll say in one of the real advantages of term limits is that it does also lower the stakes of this whole process because you're not looking at justices who are going to hold their offices, at least or hold their current positions, have their full powers for 40 years. And you're not having a dynamic where because of strategic retirements, this may be your only bite at the apple to transform the court. And so I also think part of what we think could happen with term limits is there's somewhat of an opportunity. to reset the process and turn the temperature down a little bit and shifting those incentives can help lead to a more functional confirmation process. Got it. Okay. So now to the constitutional case. So unlike something like the size of the Supreme Court, which is clearly for Congress to decide and Congress has historically changed the size of the court, although it's been said at nine

for 150 years. But clearly Congress, by statute, can create a 13 member, 15 member, 17 member court. I don't think there's any serious constitutional argument against that. By contrast, changing the nature of Supreme Court service by, as you're describing, limiting the amount of time that justices have their full powers as active justices would be something genuinely new. Congress has not done that before with respect to the Supreme Court. So what are the constitutional arguments against the viability of a proposal along the lines of the one you're describing? And then I want to get to the responses to those objections? Sure. I think the primary objection, the primary question that comes up around Supreme Court

term limits is, is it consistent with the Constitution? Article 3 of the Constitution says that judges, including justices, hold their offices for good behavior. That's language at use. Offices, good behavior. And so the question is essentially, is a term limits proposal like this consistent with Article 3 of the Constitution? And I'll say when I first started looking into these issues. I was like, I don't know if this, is this possible? And I had to really dig in, read, read case law, read the history and really read look. What persuaded me was really appreciating the both, if you look at Article III of the Constitution, there's not that much in there. It really leaves almost everything in terms of the structure and design of the Supreme Court and the,

the judiciary branch in general, to Congress. And if you look over time at how Congress has exercise those powers, really a lot of the components of a of a term limits proposal have actually been exercised by Congress over time. And so I think when you when you put that together and when you recognize that I think the design of the Constitution, particularly Article 3, was done in a way very, very clearly, I think, to let Congress figure out the best way to design this system, to design a court that can play the role that it needs needs to play in our system and recognize that those needs may change over time, I think there's a very strong argument that this is within Congress's power. Well, and will you say more about that? So what, even if Congress hasn't done exactly this,

what you're describing? What has Congress done? I like this notion that basically we have been under this mistaken impression that this kind of good behavior language in the Constitution has this totemic significance. And the thing it has to mean is service for life. Justices have to decide when to retire absolutely or serve until they die. And like, that's the nature of the, the Constitution's design. And really that's, I think, putting way too much weight on those two words, good behavior, but also underappreciating how active Congress has been in regulating, generally speaking, around the Supreme Court. So what are some examples of things Congress has done that you think supply persuasive authority for the constitutionality of a proposal like this one?

One clear example is our whole system of senior judges. And the U.S. Supreme Court has considered the constitutionality of our senior judge system. So the way it works is that now judges, both at the Supreme Court level and at the lower court level, can choose to take a senior status where they have reduced duties. But, and the Supreme Court recognized this, they still hold their office. So if you look again at the actual text of the Constitution, they are senior judges are continuing to hold their office during good behavior. And so what a Supreme Court term limits proposal does, is essentially a version of that senior judge system that we already have an effect. Now, the difference, of course, is that the justices aren't choosing when to take that senior

status. But that's not actually the text of the Constitution. It doesn't say you get to hold office during good behavior and have the office defined to be whatever the justice wants it to be. The question is, are you holding your office or are you not holding your office? And we've long recognized that senior judges and senior justices do continue. to hold their office. And I think that is all that is required for compliance with that provision of the constitution. And I'll say that isn't just something that's been written in a statute, put on a shelf and nobody's actually used it in process practice. Just many, many justices have actually taken that senior status and have been hearing cases on lower courts, thousands of cases on

lower courts. If they weren't actually holding an office in that senior status, that would have been illegal. There would have had no basis to be hearing those cases as judges. So I think you can actually see a long history of practice and that whole design of the senior judge system that sets up the components of what a term limits proposal would be. The other component I would lift up is just the long history of circuit writing, which we had in the first part of our nation's history, where Supreme Court justices were required to ride circuit. So spent a large portion of their time hearing cases on the lower courts. And again, there was a, this one up to the Supreme Court is it, can you, can you require justices to hear lower court cases if that was, if they're justices, not lower court judges? And the court said, yes, that we have had this long tradition up till now. And that that is within Congress's power to do. And I'll note, the justice is hated doing it. But that was still, that was still in Congress's domain, not the justices domain to determine the scope of their duties. So those are, I think, very persuasive examples. And I do think that in a sane world, this history of legislation, Supreme Court acquiescence in an affirmative blessing of these modes

of regulation of the courts and the Supreme Court would essentially resolve the question of the constitutionality of an 18-year term liberal proposal. And yet, I do think that there would be a serious danger of this profoundly imperial court striking this sort of term limits legislation down because it would feel like an existential threat to their authority. And as we have seen, this is not a court that is going to lightly part with authority, right? It's doing the opposite. So I guess how do you think about that possibility? And maybe that's a good segue into something that you, I think, referenced earlier, which is this maybe cannot be a standalone reform or maybe is not optimal as a standalone reform. I guess how do you think about term limits as something that could be or should be

in tandem with court expansion, right? Like, there is certainly an argument that this Supreme Court cannot be trusted to fairly read the constitutionality, you fairly assess the constitutionality of a proposal like this. And so you need to do court expansion in conjunction with term limits. The two could be done together so that you have a Supreme Court that actually might provide a fair constitutional reading of a proposal like this as opposed to leaving it to this Supreme Court, the pathologies of which we have just described. So sort of, I guess, what do you think about both of those questions? There's a lot to unpack there. I guess one thing I wanted to just say first is just one other component of the constitutional argument that I think is compelling is there are several of these proposals that particularly relate to the Supreme Court's appellate jurisdiction. So Article III of the Constitution provides that there's a limited number of cases where, the court has original jurisdiction where it hears cases as a trial court and all the rest they hear

as an appellate court. And the Constitution says that those, the courts appellate jurisdiction is subject to the regulation of Congress, exceptions and regulations as Congress defines them. And so that is, I think, just another textual basis. And again, Congress has used extensively over time its power to regulate the court's jurisdiction. So just wanted to add that as another way of thinking about the constitutional basis. But Alicia, don't you remember Sam Alito insisting that there's not one word in the Constitution that gives Congress the power to regulate the Supreme Court, not one? This is one of these Wall Street Journal interviews, I think.

Anyway, so Sam Alito at least disagrees. Sam Alito and I have a lot we don't agree on these days. I guess, so your bigger question, I think, is obviously a really important one. What would this court do with it? I think I want to push back a little bit at just the assumption that this is maybe not a fight worth having or that this is a foregone conclusion. We have a lot of former judges, law professors who have made, I think, very powerful, forceful arguments that this is within Congress's power. I think the world that we would live in where you have a wildly popular reform like this that passes Congress and that is very explicitly a. about constraining the court in a way that is respecting judicial independence in this way,

I actually think it will be hard. It will put the court in a hard position. And so, and I think it's a fight worth having. I think it's important to put the court in that position. I also think you could, there are ways that the reform could potentially be structured with severability provisions that might, for example, like you could imagine different ways of structuring it that could have additional provisions take effect, potentially even some sort of expansionary provisions take effect if term limits are struck down. So I think there's a lot of ways you could think about how to structure that statute that would make it hard for the court to say no, especially given the broad bipartisan support that people have for what really is such a common sense reform. And so I think the first thing I'll say

is that I think there is a much stronger constitutional argument even for this court than a lot of people might think on first instance. But obviously, if the court were to strike it down, I think that would very much change our whole conversation about court reform in a lot of ways. I think it could potentially jumpstart conversations about constitutional amendments. I also think it would jumpstart other conversations about what other sorts of reform should be on the table. I think, again, one of the things that I think is so compelling about term limits in particular is that it is so popular. This is a reform that everybody wants. Like, 75% of people don't even agree about like doggies and rainbows, right? Like to have something that has that level of support, I think,

is a really powerful grounding starting point for organizing people around this idea that the Supreme Court, it's not, you know, some marble castle in the sky. It's a government institution, just like any other branch of government. And it is wholly appropriate for us to be talking about how it should be structured and if it's performing the job, it needs to be performing. Yes, totally. A couple things. One, I definitely wasn't suggesting that it's not a fight worth having. I think it's absolutely a fight worth having. And I do think the constitutional arguments, and I sort of agree with you that I, years ago, when I sort of came to think really seriously about Supreme Court reform was more skeptical about term limits by statute. Now, you've always been

able to amend the Constitution to impose term limits, but the question is whether you can do it by just statute. And I have totally come around. And I think that proposals along the lines of the ones that we are discussing are squarely constitutional and the arguments against them while not frivolous or weak. And so I wasn't suggesting otherwise. I just don't trust the Supreme Court to, you know, accept even obviously winning constitutional arguments, especially if they have skin in the game institutionally. And so I think that it is important just to game out. What does happen if they decide to do something pretty lawless and strike down these term limits, even though squarely constitutional, even though with wide bipartisan support and that could

pass Congress. And so, and I think that those answers are really compelling. And just to maybe unpack, you said something about you could get creative in terms of how you design this and maybe have a some severability and an expansionary sort of default or something. And I think that what you're referencing there is some kind of design that says, well, we're going to add justices every other year in the first two years of a presidential term regardless. If you Supreme Court decide, to strike down the term limits part of it, well, then the court will just keep growing. So then we'll have the new additions every two every four years, however we distribute them. And if the limits, if you decide the limits don't fly, then you're just going to have a lot of

new colleagues that you're going to have to figure out how to play in the sandbox with. So that would be, I think, one possibility. But I also do think that you're right about the galvanizing effect that striking down something like this would have in that it would potentially spur even more serious and even radical reform. to the Supreme Court, potentially including constitutional amendment. And so I think that all of those are reasons to try, even if there is, of course, some chance you have to be clear-eyed about that this Supreme Court might do everything in its power to resist those kinds of changes to the court as an institution. When you said it took you, you know, some time to kind of think through and come around on these proposals. And I said, I have that something of a similar journey. I actually do think

that for people who think of themselves as institutional and I would count myself as one. I'm not sure if you think of yourself that way, Alicia, but my assumption is that you do at least somewhat. But either way, I guess I think that at this point, Supreme Court reform should be able to bring together people who want to defend our institutions and those who think they are fundamentally broken

and maybe want to tear them down. Like, I actually do think this is an issue that should unite institutionalists and anti-institutionalists, which is to say, like, if you detest this Supreme Court, You know, you might not need convincing that the court needs reforming, but we should figure out the specifics. But I actually think also if you are a fan of the Supreme Court and think it has an important role to play in our democracy, you should also support Supreme Court reform. Because as you said at the outset, Alicia, it is not functioning as intended in our democracy right now. And reform is the way to restore it to that proper role.

And so I do think we are at this moment where this is not just something that should be a preference of or pursued by just, just to be. people who are critics of our institutions. I think defenders of our institution should also be on board with Supreme Court reform. Okay, so end rant, but I'll give you maybe the kind of last word either on that or anything on the topic that the topics that we've been canvassing today. Well, I think you have it exactly right. And I'll go back to something you mentioned at the outset, which is that public confidence in the court has plummeted. I think this should be something that is deeply concerning to anybody who cares about the court as an institution. institution. And I think stepping back, why should we think about Supreme Court reform? I think it is

something that goes to the fact that we actually do need a functioning Supreme Court in our democracy. We need an institution that's going to protect rights that will be a bulwark against assault on our democratic system. It's important to have a court that's playing that role. And so I think the question is, how can we make structural changes that will get us to the court that we need for our democracy? And again, I think Supreme Court term limits is a transformative reform that gets at key disfunctions in the role that the court is currently playing in our system. And it is something that can really galvanize the public because I think, again, everybody understands that it's not good in a democratic system for anybody to be holding that much power for life. And so that's one of the

reasons why we've been really drawn at the Brennan Center and why my co-authors, Steve Spalding and Elzar Chacha and I wrote this paper really digging into the legal issues around Supreme Court term limits. All right. Well, I think we will leave it there. Alicia Bannon of the Brennan Center, always great to talk to you. Thank you so much for joining me today. Thank you so much for having me. Strict scrutiny is a crooked media production. Our show is produced by Melody Rowl and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGroote, Ben Hethko, Johanah case, Kenny Moffitt, Adam Lippert, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East. Thank you.