Because the Constitution does not specify how many Justices the Court will have, staggered terms present unique practical considerations. Although a federal statute presently sets the Court’s membership at nine Justices, Congress has changed the Court’s size various times and could conceivably do so again. For mathematical reasons, proposals to establish staggered, 18-year terms that create a vacancy every two years may not operate as intended if the Court does not have nine Justices. Thus, if Congress amended the Constitution to impose term limits, it might consider also amending the Constitution to prohibit changes to the Court’s size or creating variable terms that change depending on the Court’s size to try to ensure that only one vacancy arises every two years. Another question is whether terms should be renewable. While many term limit proposals would establish nonrenewable terms, others would permit the President to reappoint Justices after their terms expire. While some commentators claim that the prospect of reappointment would make Justices more productive and responsive to the electorate, others argue that opportunities for reappointment would encourage Justices to alter their votes to appease the appointing President. Finally, there are practical questions about what should happen if a Justice leaves the bench before his or her term expires or if the Senate refuses to consider or confirm nominees as termlimited Justices leave the Court. Some proposals would allow term-limited Justices to sit on the Court temporarily to fill unscheduled vacancies due to the retirement, death, or disability of a Justice. The drafters of a constitutional amendment could also consider how to ensure that the Senate considers and confirms qualified nominees or that the Court is adequately staffed if the Senate fails to do so.
Bessette/Pitney’s AMERICAN GOVERNMENT AND POLITICS: DELIBERATION, DEMOCRACY AND CITIZENSHIP reviews the idea of "deliberative democracy." Building on the book, this blog offers insights, analysis, and facts about recent events.