Volume 71, Issue 4, 1053-1080
While the process of nominating and confirming justices to the U.S. Supreme Court has always been political in nature, the three most recent nominations of Merrick Garland, Neil Gorsuch, and Brett Kavanaugh illustrate the extent to which the confirmation process has become especially partisan. Whereas the nominations of Antonin Scalia and Ruth Bader Ginsburg each received broad, bipartisan support, no nominee since Stephen Breyer has received more than eighty votes in the Senate. Furthermore, for the first time since 2004, the economy is not the political issue that voters are most likely to consider “very important;” that designation now belongs to the composition of the Supreme Court.
To ease the high-stakes, partisan attitudes that currently define Supreme Court confirmations, this Note advocates for a 28th Amendment, limiting Supreme Court tenure to eighteen-year terms. In doing so, it considers the experiences of countries that have similar confirmation processes but place limits on judicial tenure. Broadly speaking, there are two types of limits on judicial tenure. The first approach is that of a mandatory retirement age, which Brazil adopted in 1891. Brazil’s experience, which has been characterized by massive disparities in appointment power among the different presidents, cautions against such an approach. The second approach is that of a “term of years” limit. Mexico adopted fifteen-year term limits in 1994, and the results have generally been encouraging. However, like Brazil, there remains some disparity among various Mexican presidents in their appointment power, fueled in part by the limits placed on judicial tenure. This disparity could be remedied by adopting the eighteen-year proposal advocated by Professors Steven Calabresi and James Lindgren, as opposed to fifteen-year terms, as this would guarantee each president at least two opportunities to nominate a Justice.