The Supreme Court’s ethical failures that have come to light this year have raised questions of how to implement enforceable accountability measures. One possible answer is staggered term limits.
The Supreme Court is a uniquely powerful American institution held to uniquely lax ethics regulations compared to the rest of the nation’s court systems and other federal branches. With lifetime appointments and a high bar for impeachment—only one Supreme Court justice has ever been impeached, in 1805—there are functionally no substantial consequences for justices who engage in unethical behavior or refuse to recuse themselves from cases where they have conflicts of interest. And when transparency and ethics laws are rarely abided by, lifetime appointments not only permit but encourage powerful outside actors to unethically gain justices’ favor using expensive personal gifts, travel and other means.
This April, ProPublica revealed that Justice Clarence Thomas accepted luxury trips from billionaire donor Harlan Crow almost every year for over 20 years without disclosing them. Crow also paid the boarding school tuition for Thomas’ grandnephew for two years, and in 2014, Thomas sold to Crow three Georgia properties including a house where Thomas’s mother continued to live (Crow then invested in a series of renovations to Thomas’s mother’s home). Thomas, who has served on the Court for over 32 years, will become the 10th-longest serving Supreme Court justice in history in April.
ProPublica also reported this year that Justice Samuel Alito accepted an undisclosed luxury trip from a megadonor with business before the Supreme Court in 2008, when billionaire Paul Singer flew Alito on a private jet to a luxury Alaskan fishing lodge. Singer has since had business before the Court at least 10 times, including at least one case in which Alito failed to recuse and the Court voted in Singer’s favor. Shortly before, Politico reported that Justice Neil Gorsuch received an offer for a property he co-owned from Brian Duffy—the head of Greenberg Traurig, one of the country’s biggest law firms—nine days after being confirmed by the Senate in 2017. The sale went through a month later. The firm has had at least 22 cases before the Supreme Court since, and Gorsuch sided with its clients in eight out of the 12 cases where his opinion is recorded.
A term limit of 18 years would ensure that such conflicts of interest would endure for much less time, and make expensive, extremely long-term investments into a justice’s good favor harder to make with less payoff. Under this limit, for example, Thomas’s term would have ended in 2009, amid Crow covering Thomas’s nephew’s tuition bill, and several years before his property deal with Crow came to fruition. It would also develop a healthier cycle of justice appointments by spreading appointments evenly over presidential terms, ensuring that the Court isn’t perceived as representing only one party or president. Most importantly, justices who face doubt about their integrity will naturally be term-limited, helping to mitigate the problem of the Court facing dwindling credibility over decades at a time.
Term limits would also help to address the ethical question of the justices’ frequent, privately-funded travels, an ongoing debate that reignites repeatedly following both justices’ personal financial disclosures and reports about undisclosed subsidized travel. Recent long-serving justices aside from Clarence Thomas have also made a habit of accepting trips from the wealthy, apparently increasingly so as their tenures continued. Justice Antonin Scalia served on the Court for nearly 30 years, the longest tenure of any justice on the Court at the time of his death in 2016, and one that was marked by a significant number of subsidized trips paid for by private sponsors. His travel was funded by private dollars most frequently of all the active justices from 2004 to 2014, with a total of 258 subsidized trips. Justice Stephen Breyer, who served on the Court for just under 28 years until 2022, took at least 225 subsidized trips from 2004 to 2018. Limiting active terms to 18 years would dramatically reduce the volume of privately-funded travel and help to rekindle the Court’s reputation as fair and trustworthy.
In September, Rep. Hank Johnson and Rep. Adam Schiff introduced the Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act, which would regularize presidential appointments to the Supreme Court and establish 18-year terms for the Court’s justices. Passing the TERM Act is a crucial first step to making the Supreme Court a better reflection of the American people, guarding against corruption, and holding justices to the highest ethical standards.