Fordham Law Professor Aaron Saiger was quoted in a National Law Journal article discussing the likelihood of term limits being introduced to the Supreme Court. This comes in the wake of President Joe Biden’s July 29 announcement that he would spend the final months of his term pushing for an enforceable ethics code and term limits for Supreme Court justices. The move also comes two and a half years after Biden’s 2021 Presidential Commission on the Supreme Court of the United States released its 294-page report that analyzed the contemporary public debate for and against Supreme Court reform.
“The logistical challenge of passing a constitutional amendment is greater than the logistical challenge of pretty much anything else,” said Fordham University law professor Aaron Saiger. “Amending the Constitution of the United States is something between logistically extremely difficult and practically impossible, especially about a contested issue.”
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But even settling on a system of senior and active Supreme Court members doesn’t answer additional issues that could arise under a system in which the president is entitled to appoint a justice every two years. For instance, what happens when a justice dies or retires before their term ends? Does the president then get his or her two appointments, plus the chance to fill additional vacancies that may arise?
“These are details,” Saiger said. “I don’t imagine that proponents of term limits like President Biden have an enormous stake in the way these questions are resolved.”
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Saiger said he favors a slower transition that would implement term limits as vacancies naturally arise on the court.
“It feels less like an effort to advance a particular partisan or legal agenda and more like a good government, constitutional reform that says, ‘Given the change in life expectancy and the nominating behaviors of presidents over time, we think this new system would work better without paying attention to partisan considerations,'” Saiger said.
“That’s why I personally am interested in these slow rollout proposals,” he added. “But they are kind of like planting a tree. You don’t see the fruits of your own labor and therefore they may not be politically attractive to many of the actors in this sphere.”
Read “Term Limits for Justices Are Popular … and a Logistical Morass” in National Law Journal.