By Jordan Meadows
Staff Writer
The idea of lifetime appointments to the U.S. Supreme Court begins with a very specific institutional problem the framers were trying to solve: how to create a judiciary strong enough to check the other branches, but not so politically entangled that it simply mirrored them.
In the Federalist Papers, Alexander Hamilton argued that courts would be the “least dangerous branch” precisely because they lacked control over the purse or the sword. At the time, this was not theoretical—early justices had little influence, the Court heard very few cases, and figures even questioned whether the institution had any real “energy, weight, and dignity.”
Hamilton’s defense of lifetime tenure—appointments “during good behavior”—was rooted in this concern for independence.
Critics, especially the Anti-Federalists, warned that unelected judges with life tenure could become unaccountable and threaten liberty. But Hamilton’s response reframed the issue: the danger was not that judges could act politically, but whether institutional design minimized that risk better than the alternatives. If judges had to face reelection or reappointment, they would have incentives to please the political branches or public opinion.
Lifetime tenure, by contrast, insulated them from those pressures, allowing them to enforce constitutional limits even when doing so was unpopular. This insulation was especially important in moments of what Hamilton feared most—bursts of “popular passion,” when a majority might support actions that violated constitutional principles. In that scenario, only a judiciary independent from both politicians and the public could serve as an effective check.
Even after Chief Justice John Marshall established judicial review in Marbury v. Madison (1803), the Court rarely struck down federal laws for decades. It was not until Dred Scott v. Sandford (1857) that the Court asserted that kind of power again, widely regarded as one of the Court’s least-constitutional arguments, reinforced fears that an independent judiciary could also act disastrously.
But what Hamilton envisioned as the least dangerous branch has become one of the most consequential institutions in American governance, regularly deciding issues central to public life. At the same time, the structure of lifetime tenure has evolved in ways the framers did not anticipate: for the first 180 years of U.S. history, justices served an average of about 15 years. But beginning in the late 20th century, justices often serve 30 years or more. This shift is driven by a combination of younger appointments and longer lifespans.
This change has intensified the political stakes surrounding the Court, and because vacancies are unpredictable and infrequent, each nomination has become what many describe as “constitutional hardball,” exemplified by events like the Senate’s refusal to consider Merrick Garland in 2016, followed by the rapid confirmation of Amy Coney Barrett in 2020 under different political circumstances.
Recent ethical controversies involving justices have raised questions about accountability in a system where members of the Court can serve for decades with limited formal oversight. At the same time, public trust in the Court has declined.
Another concern tied to lifetime tenure is strategic retirement. Justices are aware that the timing of their departure can influence who replaces them, often aligning their retirement with a politically favorable president and Senate. Thurgood Marshall famously resisted retiring under a president whose judicial philosophy he opposed.
Age and cognitive decline have also entered the discussion. As justices serve longer, many remain on the bench into their 80s. While this does not apply uniformly, the absence of a mandatory retirement age or term limit leaves no structural mechanism to address potential declines in capacity.
In response to these developments, a range of reform proposals has gained traction. One of the most widely discussed is the introduction of 18-year term limits for Supreme Court justices, combined with regularized appointments. Under this system, a new justice would be appointed every two years, ensuring that each president makes two appointments per four-year term. Advocates argue that this would reduce the stakes of any single nomination, create a more predictable and stable appointment process, and better align the Court’s composition with the evolving electorate. It would also eliminate the incentive for strategic retirements, since vacancies would occur on a fixed schedule.
Other reform ideas include adopting a formal ethics code for justices, expanding the size of the Court, or limiting its jurisdiction in certain areas. Notably, the United States is an outlier among democracies in maintaining lifetime tenure for constitutional court judges. Most other countries—and even most U.S. states—use fixed terms or mandatory retirement ages.
