Reform Through Resignation: Why Chief Justice Roberts Should Resign (in 2023)

Abstract

On September 29, 2023, Chief Justice Roberts will have served exactly eighteen years on the Supreme Court. He should mark this occasion by doing something extraordinary: resigning. By doing so, the Chief Justice could create a new norm whereby Supreme Court Justices agree to serve staggered eighteen-year terms on the Court. The resulting de facto term limit would rectify the structural problems caused by life tenure and would strengthen an institution facing an unprecedented legitimacy crisis in the wake of three exceptionally controversial Supreme Court appointments by President Trump. This paper contains three parts. In Part I, I provide an overview of the institutional problems associated with life tenure, including the randomness of Supreme Court vacancies, the increased length of time the Justices spend on the bench, and the politicization of the Court. Part II introduces the system of eighteen-year staggered term-limits that is supported by a wide range of scholars and other Court observers. I then respond to several criticisms of this term-limit reform, ultimately agreeing with the critique that implementing term limits via constitutional amendment is highly unlikely and implementing them via statute is likely unconstitutional. This conclusion leads me, in Part III, to argue that the most plausible way to establish Supreme Court term limits is through changed norms. Much as George Washington’s decision to not seek a third term as President led to a de facto Presidential term limit, I contend that Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. I then detail how Chief Justice Roberts’ well-timed resignation could lead to this de facto term limit system.