Author ORCID Identifier

Michael Broyde 0000-0001-9960-7256

Document Type

Article

Publication Date

2026

Keywords

Term limits, Supreme Court Justices, Post-retirement, Lifetime tenure

Abstract

In its 2021 final report, the Presidential Commission on Judicial Reform discussed the merits of implementing term limits for Supreme Court justices. The Commission began by acknowledging that eighteen-year, non-renewable terms have considerable bipartisan support, including the support of both Conservative and Progressive scholars at the National Constitution Center, whose proposals for improving the Constitution included term limits for justices. They continued by weighing the pros and cons of implementing term limits via constitutional amendment or statute, addressing, in turn, the specifics of what these limits might look like—whether a twelve or eighteen-year term is preferable, how a transition from life tenure to term limits would occur, and, importantly, whether it would be necessary to impose constraints on retired justices’ post-term employment in other high-level government positions.

At the outset, we join these many scholars in acknowledging that term limits have advantages. Our primary concern in this piece is that the surrounding discussion has been hyper-focused on whether term limits can be instated from a constitutional perspective, and has failed to really consider if they should be instated at all. The term limit model, we observe, produces a major issue that requires upfront consideration for any such innovation to be optimized. It can be captured in the following question: How do we feel about justices who conclude their term and return to the practice of law? This, as our data will show, is a likely scenario, and thus worth serious consideration.

We approach our exploration of the question by first engaging conceptually with a reality where retiring justices of the Supreme Court return to work, likely—as we will argue—to private practice, and expounding on the issues that result. We then turn to offer a background on the scholarly discussion surrounding term limits, focusing particularly on the gap in the literature relating to what might happen to justices post-retirement. And, finally, we turn to analyze data in support of our proposition that (1) justices leaving the Supreme Court are not likely to retire from full work upon the expiration of any term limit, and (2) that, above any other occupation, retiring justices will likely seek to enter private practice.

First Page

231

Publication Title

Akron Law Review

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