People demonstrate in favour of abortion rights during a rally on Tuesday at the Capitol in Olympia, Washington.

Michael Hiltzik, Tribune News Service

The Supreme Court’s now-confirmed intention of overturning the half-century-old protection for abortion rights in Roe v. Wade is energizing the debate over how to rein in the court’s extreme conservative slant.  Expanding the court beyond its current complement of nine justices has long been the most widely discussed option.  Another idea may be gaining traction, however: Eliminating the justices’ right to lifetime appointments by imposing a term limit. This option, which has been discussed for decades, received its most recent airing in March at a roundtable among law professors sponsored by Sanford Levinson of the University of Texas School of Law.

“It is telling that all of us seem to be fully comfortable with the idea of term limits,” Levinson wrote after the event. “It is getting harder and harder to find anyone who genuinely defends either as ‘necessary’ or even ‘proper’ the truly exceptional national American practice of ‘full-life’ tenure that allowed John Paul Stevens to serve for 34 years until he turned 90.”

Levinson is correct. The Founding Fathers almost certainly did not expect Supreme Court justices to serve that long, and for most of American history they didn’t.  The average tenure on the court was 15 years until the 1970s, when it shot up to nearly 26 years. By 2005, the average age of justices at death or resignation was nearly 79, a record.

“Life tenure today means a significantly longer tenure than it meant in 1789,” Steven G. Calabresi and James Lindgren of Northwestern University observed in 2015. The average has plainly risen since then — Ruth Bader Ginsburg died in office at 87, Antonin Scalia at 79. Stephen Breyer retired this year at 83 and Anthony Kennedy in 2018 at 82.

The trend is an artifact of improved healthcare. The average age of Supreme Court justices at the time of their appointment has remained stable since the late 1700s at about 50 to 55, but life expectancy since then has soared.  Life tenure for judges doesn’t only make the US an outlier globally, Levinson wrote, but sets the federal government apart from the states, only one of which (Rhode Island) grants its supreme court judges life tenure. In all other states, the high judges either have fixed terms or are required to step down at age 70.

Pros and cons exist for both options for reshaping the court. Term limits appear to be more popular than expanding the court: Among respondents to a Morning Consult/Politico poll, 66% favored term limits for justices versus 21% against them, while only 45% favored expanding the court versus 36% against.

The poll was taken after the leaked disclosure Monday of a draft opinion by Justice Samuel Alito overturning Roe v. Wade, the 1973 decision that guaranteed abortion rights nationwide.

On the negative side, imposing a term limit on the justices may be legally more difficult than expanding the court. The constitutionality of subjecting Supreme Court justices to fixed terms via legislation rather than through a constitutional amendment is open to question, and the amendment process is inherently more complicated than congressional action. Changing the number of justices, on the other hand, unmistakably falls within congressional authority. Before delving into how to fix the Supreme Court, let’s examine how it’s broken. It has become clear in recent years that the court has moved well to the right of American political sentiment.

Legal experts Nancy Gertler and Lawrence Tribe, who were members of a commission established by President Biden to weigh options, wrote last year that “the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money” made reshaping the court imperative. (They favored expanding the court “as soon as possible.”)

A wide gulf plainly exists between what appears to be a court majority restricting abortion rights and public opinion, which overwhelmingly favors access to abortion in some or all circumstances. Only 20% of Americans think abortion should be banned entirely.

The reasons for the divergence of public opinion and court actions aren’t hard to find. One is the increasing politicization of the appointment process, in which a justice is nominated by the president and confirmed by the Senate.

As has been pointed out by Erwin Chemerinsky, a constitutional scholar and dean of the law school at UC Berkeley, from 1960 through 2021, Republicans have held the White House for 32 years and Democrats for 29, almost an even split. But Republicans have appointed 15 justices and Democrats only nine.

That count includes conservatives Neil Gorsuch, who was the beneficiary of the Senate GOP’s dishonest maneuvering to withhold consideration of Barack Obama’s nomination of Merrick Garland to succeed the late Antonin Scalia, and Amy Coney Barrett, whose nomination was rushed through to confirmation to give Trump instead of Biden the opportunity to appoint a successor to Ginsburg. It also includes Ketanji Brown Jackson, appointed by Biden.

Life terms for the Supreme Court has led to this uneven distribution of appointments. To some extent this is the luck of the draw.  Following the 12-year tenure of Franklin Roosevelt, who appointed eight justices, Democratic presidents were consistently shortchanged — Bill Clinton and Obama got only two appointments each during their eight White House years and Jimmy Carter none, while George H.W. Bush got two in his sole term and Trump three in his sole term. No Democratic president was able to appoint a justice in the 26 years between Lyndon B. Johnson’s appointment of Thurgood Marshall in 1967 and Clinton’s of Ginsburg in 1993.

The prospect of open-ended service on the court encouraged the justices themselves to try gaming their retirements. Typically they tried to hang on until they could be assured that a like-minded president would appoint their successor (not that this invariably worked). The result was the continued service of justices who were plainly impaired mentally or physically.

That has prompted concerns about what legal scholar David J. Garrow labeled “mental decrepitude” on the court. The best known example for Supreme Court aficionados is probably that of William O. Douglas, whose 1974 stroke left him so debilitated that his colleagues on the bench secretly agreed to hold over any cases on which Douglas would cast the deciding vote to break a 4-4 tie.  Douglas retired in 1975 and died in 1980, at age 81. (As a personal aside, Douglas gave the keynote address at my college commencement the year before his stroke, and he was already incoherent.)

The dangers of open-ended Supreme Court terms are illustrated by the case of Ginsburg, a liberal icon who hung on through repeated bouts of cancer until she died in 2020 at age 87, long past the point when her retirement would have allowed Democrat Obama to name her successor.