The materials, however, suggest that while both ideas have their supporters and detractors, expanding the court is the far more contentious of the two.
For example, some liberals oppose breaching the norm against changing the court’s size that developed after the failure of President Franklin D. Roosevelt’s “court packing” proposal, in part because a conservative Senate and president could also choose to re-tilt the court by expanding it.
“This uncertainty leads even some who fundamentally disagree with aspects of the current Supreme Court’s jurisprudence to believe it is better to preserve the Court’s long-term legitimacy and independence than to open up the Court to be packed by potentially dangerous and even authoritarian political movements going forward,” the commission materials said.
By contrast, while the revisions flesh out a section explaining arguments against imposing term limits on the Supreme Court, the discussion materials also stress that the idea of staggered, 18-year terms — with a seat opening every two years — has enjoyed support from both liberal and conservative scholars.
Testimony taken by the commission, including comparing how states and other countries handle their judiciaries, showed that the American system in which federal Supreme Court justices serve for life — meaning they can cling to office into their geriatric years, and make the opening of seats via deaths erratic and unpredictable so that some presidents get many appointments in a term and some none — is highly unusual.
“The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court justices,” the materials said. “Among the world’s democracies, at least 27 have term limits for their constitutional courts. And those that do not have term limits, such as the Supreme Court of the United Kingdom, typically impose age limits.”
The revisions to the material also go into significantly greater depth about different options for implementing term limits. These include various ways to phase in the system while there are still justices on the Supreme Court who were appointed to life-tenured seats — a process that could take a generation or two — and how to handle situations in which justices may die or step down before their terms are up.