Federal Judicial Balance and Accountability Act¶
Active Service Duration: The Case for Twelve Years Over Eighteen¶
Published February 2026¶
Based on Rev 2.3 of the Federal Judicial Balance and Accountability Act
Introduction¶
The question of how long a Supreme Court justice should serve in active capacity is the single most consequential design decision in any term-limits proposal. Yet it is also the least rigorously examined. The legal reform literature has converged on eighteen years with remarkable speed and remarkably little principled justification -- a convergence driven primarily by a mathematical convenience for a nine-seat Court rather than by any sustained analysis of democratic accountability, comparative institutional evidence, or the structural relationship between term length and the broader architecture of judicial reform.
This document compares twelve-year and eighteen-year active service periods across multiple evaluative dimensions: historical norms, democratic accountability, comparative institutional evidence, doctrinal stability, structural integration, and the arguments of those who contend that even eighteen years is insufficient. It concludes with the principled basis for the Federal Judicial Balance and Accountability Act's (FJBAA) adoption of twelve years -- a choice that reflects not a compromise with political feasibility, but a position grounded in evidence and institutional design logic.
The Historical Baseline¶
Any evaluation of proposed term lengths must begin with what history actually tells us about Supreme Court tenure.
For the first 180 years of the Court's existence -- from 1789 through approximately 1969 -- the mean tenure of a Supreme Court justice was roughly 14.9 years, with a median of approximately 14 years. This era encompasses the first 98 justices, from the founding through the resignation of Abe Fortas. During this period, most justices served between ten and twenty years. Short tenures were common due to illness, death, circuit-riding exhaustion, and political resignations. A few exceptionally long tenures, such as Stephen Field's thirty-four years, modestly raised the mean.
The structural picture changed dramatically beginning around 1970. From the Burger Court forward, justices began to be appointed younger, live longer, and retire strategically. The mean tenure for justices appointed since 1970 has ballooned to approximately 25-27 years, with a median of roughly 26 years. This shift was not constitutional -- it was demographic and strategic, driven by increased life expectancy, presidential prioritization of younger nominees, the normalization of strategic retirement, rising Senate polarization, and medical advances that reduced forced retirements.
The Court has effectively doubled its typical tenure length. What was historically a roughly fifteen-year institution now functions as a roughly twenty-six-year institution.
Chief Justice John Roberts himself acknowledged this historical reality. In a 1983 memo written while serving as a White House attorney, Roberts argued that a fixed term of fifteen years would be appropriate for federal judges, noting that the Framers adopted life tenure at a time when lengthy insulation from society was rare. Roberts warned that extended tenure risked judges losing touch with reality through decades of "ivory tower existence." His suggested fifteen-year term was closer to the historical norm than any proposal in the current reform literature.
This baseline frames the comparison that follows. Twelve years falls within the historical range of typical service. Eighteen years approaches the upper bound of historical norms and comes within striking distance of the modern pathological average. The burden of justification should fall on the longer duration.
The Eighteen-Year Consensus: Origins and Limitations¶
The convergence on eighteen years traces primarily to Steven G. Calabresi and James Lindgren's influential 2006 paper, "Term Limits for the Supreme Court: Life Tenure Reconsidered." Their empirical analysis of every justice from 1789 through 2006 identified several pathologies associated with modern life tenure -- strategic retirements, incentives for presidents to appoint younger nominees, and growing randomness in appointment opportunities across presidential terms.
Calabresi and Lindgren observed that eighteen-year terms would produce two appointments per presidential term on a nine-seat Court with biennial scheduling. The formula is straightforward: nine seats multiplied by a two-year appointment frequency equals eighteen years. This mathematical elegance became the proposal's primary selling point. Subsequent scholarship -- including DiTullio and Schochet's "Saving This Honorable Court," Carrington and Cramton's edited symposium volume, the American Academy of Arts and Sciences Working Group Report, and multiple Brennan Center analyses -- adopted the eighteen-year figure with little independent derivation.
The Chilton et al. "Designing Supreme Court Term Limits" study (2021), which provides the most rigorous empirical framework for evaluating term-limits proposals, treats term length as the least analytically interesting of its nine design decisions. The authors note the tradeoffs and move on, essentially accepting the consensus without stress-testing it. As the FJBAA's Chilton Framework Evaluation observes, no proposal in the literature argues for eighteen years with the rigor that the Act argues for twelve.
The eighteen-year consensus rests on several assumptions that deserve scrutiny.
First, it assumes a nine-seat Court. If one changes the number of seats, the optimal term length under the same mathematical logic would change accordingly. The eighteen-year figure is not metaphysical -- it is institutional engineering for a specific court size. On a fifteen-seat Court, the same biennial appointment cadence that drives the eighteen-year consensus is produced by twelve-year terms.
Second, the consensus treats the Calabresi-Lindgren median tenure figure (approximately 18.5 years) as a normative anchor rather than a descriptive statistic. But median historical tenure is a descriptive fact about a system operating under life tenure with high mortality -- not a prescription for what tenure ought to be under a designed system. Using historical median tenure to justify fixed term length confuses what happened with what should happen.
Third, the consensus frames the question as "how long is long enough to insulate justices from political pressure" -- a framing that produces eighteen years as a comfortable compromise. The FJBAA reframes the question: how long should unelected officials hold extraordinary power before the democratic system receives a structured opportunity to recalibrate?
Arguments That Eighteen Years Is Too Short¶
Before advancing the case for twelve years, intellectual honesty requires engaging with the opposing position: that even eighteen years is insufficient, and that longer tenures -- or life tenure itself -- serve values that fixed terms of any length undermine.
Doctrinal stability and stare decisis. The most developed critique comes from Suzanna Sherry and Christopher Sundby, whose 2019 computer simulations modeled the effect of eighteen-year terms on abortion rights following Roe v. Wade. Their model predicted that under term limits, the core holding of Roe might have been overruled and reinstated multiple times as the Court's ideological composition shifted with biennial appointments. They argue that "democratic responsiveness" is fundamentally in tension with stare decisis -- that if every new justice is appointed to bring the Court into alignment with current political sentiment, the incentive to respect predecessors' rulings diminishes.
This critique has force, but it applies with equal or greater strength against the current system, which produced the actual overruling of Roe in Dobbs v. Jackson after nearly fifty years -- a reversal driven not by principled institutional turnover but by the actuarial lottery of which justices happened to leave the bench during which presidencies. The instability Sherry and Sundby model under term limits is hypothetical; the instability produced by the current system is empirical.
Judicial independence and insulation. Some scholars argue that longer terms provide greater insulation from political pressure, allowing justices to develop independent jurisprudential voices uncorrupted by concern for post-bench careers. Justice Stephen Breyer himself suggested that "a long term -- I don't know, 18, 20 years, something like that" would be acceptable. The Presidential Commission on the Supreme Court (2021) noted concerns that shorter fixed terms could lead to justices "auditioning" for future employers through their opinions.
This concern diminishes significantly when the post-active career involves continued judicial service rather than private sector employment. Under any senior-status model -- including the FJBAA's structurally robust Senior Justice phase -- justices transition to continued public service, not retirement into the private sector. The incentive structure differs fundamentally from that of a term-limited legislator who must seek private employment.
Accumulated expertise and institutional memory. Defenders of longer tenure argue that constitutional adjudication requires deep expertise that takes years to develop. A justice who has served twenty-five years brings accumulated wisdom about the Court's internal dynamics, the practical consequences of prior decisions, and the institutional relationships that make the judiciary function. Shorter terms, on this view, sacrifice wisdom for freshness.
This argument has genuine merit but proves too much. Carried to its logical conclusion, it justifies life tenure itself -- which is precisely the system producing the pathologies that prompted the reform debate. Every institutional role involves tradeoffs between experience and renewal. The question is where the optimal balance lies, and whether the expertise argument can justify doubling the historical norm of service.
Constitutional concerns about Article III. Van Alstyne and other critics argue that any fixed-term system -- regardless of length -- risks violating Article III's guarantee of tenure during good behavior. On this view, the distinction between modifying "duties" and terminating "tenure" is too thin to survive judicial review, and only a constitutional amendment can safely implement term limits. Those holding this position naturally resist shorter terms most strongly, since they regard the entire enterprise as constitutionally suspect and would prefer the longest possible fixed term if forced to accept one.
The Case for Twelve Years¶
The FJBAA's twelve-year active service period rests on several independent lines of justification that, taken together, provide a stronger principled foundation than any argument advanced for eighteen years.
Comparative institutional evidence. Germany's Federal Constitutional Court has used twelve-year non-renewable terms since 1970, combined with a mandatory retirement age of sixty-eight. This system is widely regarded as producing both judicial independence and institutional renewal across more than five decades of operation. The German court interprets the Basic Law of Europe's largest democracy -- a task of comparable constitutional magnitude to the work of the U.S. Supreme Court. If twelve years suffices for that institution, the case that American constitutional adjudication uniquely requires eighteen years demands affirmative evidence that has not been provided.
The United Kingdom's Supreme Court, operating since 2009, effectively produces tenures in a comparable range through its mandatory retirement age. Canada's mandatory retirement at seventy-five and Australia's at seventy produce similar results. These are not theoretical projections -- they are functioning constitutional democracies demonstrating the adequacy of twelve-year-range judicial terms. The average tenure for U.S. state supreme court justices since 1970 has been approximately thirteen years, roughly half the average for their federal counterparts during the same period.
Democratic accountability proportional to power. Supreme Court justices hold positions of extraordinary power without democratic accountability. On the current nine-seat Court, five justices can override the expressed will of the entire elected government -- nullifying legislation that passed both chambers of Congress and received presidential signature. Under the FJBAA's fifteen-seat Court, eight votes would be required to form a majority, meaningfully diluting any single appointment's constitutional leverage.
The presidency -- the only federal position wielding power comparable to a Supreme Court seat -- is limited to eight years under normal circumstances. The Twenty-Second Amendment permits a maximum of ten years for a vice president who assumes office mid-term. If the framers of that amendment concluded that roughly a decade represents the outer bound of acceptable tenure for concentrated federal power exercised by a single individual, the case for limiting Supreme Court active service to twelve years follows naturally. Justices exercise power without electoral accountability and with effects that long outlast any presidency; if anything, the case for limiting their active service is stronger than the case for presidential term limits.
Active service is not the full measure of judicial contribution. This point represents the most fundamental reframing of the term-length debate. The eighteen-year proposals treat post-term service as an afterthought -- a graceful exit into semi-retirement. The FJBAA treats it as a structurally necessary second career phase with real institutional functions.
Senior Justices under the Act serve in the vacancy coverage pool, returning to the active Court when unexpected vacancies arise through random lottery rotation. They sit on circuit courts by designation. They adjudicate ethics complaints on the Ethics Review Panel. They provide institutional memory and continuity. These are not honorific functions -- they are essential to the Court's operation under the Act's architecture.
Twelve years of active service is not the total period of judicial contribution. It is the period of peak active service, followed by a Senior Justice phase of continued, meaningful contribution. A justice appointed at fifty-five transitions to Senior status at sixty-seven, with potentially decades of additional service ahead. Under an eighteen-year term, that same justice transitions at seventy-three -- an age at which health limitations increasingly constrain the very functions the system depends on. If the Act needs a robust vacancy coverage pool and a functioning Ethics Review Panel composed of vigorous former justices, it needs those justices to reach Senior status while they are still capable of serving.
The fifteen-seat context changes the calculus. On a fifteen-seat Court, twelve-year terms produce biennial appointments -- the same cadence that eighteen-year terms produce on a nine-seat Court. The democratic responsiveness function is thus comparable. Where the shorter term produces a real difference is in total tenure of active influence for any individual justice. On a nine-seat Court, the compositional "whiplash" concern that Chilton et al. raise would be significant. But on a fifteen-seat Court, any single appointment's impact on the overall median is diluted by roughly forty percent compared to a nine-seat Court. The larger bench absorbs turnover that would produce sharp swings on a smaller Court.
Risk asymmetry and burden of justification. Shorter terms limit the downside of poor appointments -- a justice who proves unsuited to the role or whose jurisprudence diverges sharply from the reasonable expectations at appointment has a more bounded period of influence. Longer terms amplify this risk. The burden of justification should fall on longer tenures. Eighteen years or more approaches monarchical duration -- locking in each appointment for nearly a generation, amplifying the consequences of inevitable selection errors, and creating the conditions for courts to become identified with individual justices rather than serving as institutions belonging to the people.
Integration with the three-phase career structure. Twelve years integrates naturally with the FJBAA's three-phase career structure. Ten years as Associate Justice provides substantial time to develop expertise, build working relationships, and contribute to the Court's jurisprudence. Two years as Co-Chief Justice provides meaningful opportunity to share in the leadership of the Court and the federal judiciary without the power accumulation that accompanies decades-long singular tenure. The 10+2 structure creates a dignified career arc with a clear capstone rather than the indefinite continuation that characterizes current practice. Every justice who completes a full term serves as Co-Chief Justice -- democratizing an honor and responsibility that the current system distributes based on presidential preference and actuarial chance.
Nominee pool dignity and the end of actuarial selection. The twelve-year term also eliminates one of the current system's most corrosive but least examined distortions: the systematic devaluation of older nominees. Under life tenure, every appointment is an implicit actuarial bet -- a president who appoints a fifty-year-old "buys" roughly thirty years of ideological influence, while a president who appoints a sixty-two-year-old "buys" perhaps twenty. The rational strategic response, consistently observed in the post-1970 appointment record, is to treat youth as a proxy for longevity, narrowing the candidate pool to exclude distinguished jurists whose only disqualification is experience itself. A fixed twelve-year term neutralizes this calculus entirely. Every nominee serves the same duration regardless of age at appointment. The selection process can prioritize legal distinction, judicial temperament, and breadth of experience -- qualities that tend to increase with age -- rather than penalizing them. This is not merely a structural efficiency; it is a matter of institutional dignity. A system that treats a distinguished sixty-three-year-old circuit judge as a second-best option because of her actuarial profile has confused longevity with merit. Eighteen-year terms improve this dynamic relative to life tenure but do not eliminate it -- a nominee appointed at sixty-three would serve until seventy-eight under an eighteen-year term, reintroducing health-completion concerns that Chilton et al.'s simulations document at length. Twelve-year terms place that same nominee's transition at seventy-five, well within the range of vigorous continued service as a Senior Justice.
The twelve-year term also reduces the final-period problem by shortening the period during which a justice knows their departure is imminent, and by providing an affirmative institutional role -- the Co-Chief Justice capstone -- during the final two years of active service. Under eighteen-year terms, Chilton et al.'s simulations suggest that a justice appointed at age sixty would be serving beyond their term in approximately forty-two percent of years. Twelve-year terms reduce this exposure substantially.
Side-by-Side Comparison¶
| Dimension | 12-Year Active Term (FJBAA) | 18-Year Active Term (Consensus) |
|---|---|---|
| Historical alignment | Within historical mean (~14.9 years pre-1970) | Near upper bound of historical norms |
| Comparative precedent | Germany (12 years); state courts (~13 years) | No direct international precedent at 18 years |
| Court size assumption | 15-seat Court (principled derivation) | 9-seat Court (inherited convention) |
| Appointments per term | 5 per presidential term (with equalization) | 2 per presidential term |
| Biennial cadence | Yes (same as 18-year on 9-seat Court) | Yes |
| Individual appointment impact | Diluted (~40% less than on 9-seat Court) | Full impact on 9-seat majority |
| Senior Justice phase | Structurally robust: vacancy coverage, ethics adjudication, circuit service | Afterthought: graceful exit to semi-retirement |
| Age at transition (appointed at 55) | 67 (vigorous for continued service) | 73 (increasingly constrained by health) |
| Nominee pool effect | Eliminates actuarial selection bias; older candidates fully competitive | Reduces but does not eliminate age-based selection pressure |
| Co-Chief Justice integration | 10+2 structure creates natural career arc | No structural relationship to Chief Justice |
| Final-period problem | Reduced by shorter horizon and Co-Chief capstone | Extended period of known departure |
| Doctrinal whiplash risk | Mitigated by 15-seat Court dilution effect | Present on 9-seat Court |
| Democratic accountability | Higher: 12-year recalibration cycle | Lower: 18-year recalibration cycle |
| Risk of poor appointments | Bounded to 12 years of active influence | Extended to 18 years of active influence |
| Presidential control concern | 5 appointments across 15 seats = 33% | 4 appointments across 9 seats = 44% |
Why the FJBAA Landed on Twelve Years¶
The FJBAA did not arrive at twelve years by splitting the difference between competing proposals or by seeking political palatability. The twelve-year active service period is a principled position that emerges from the intersection of several independent lines of reasoning, each of which independently supports a shorter term than the consensus and which collectively make the case compelling.
The starting point is the Act's fifteen-seat Court, which is itself a principled derivation from population equity constraints applied to federal judicial circuits -- not an arbitrary expansion target. Once the Court size is established at fifteen, the mathematical relationship between court size, term length, and appointment cadence changes fundamentally. Twelve years on a fifteen-seat Court produces the same biennial appointment rhythm that drives the entire eighteen-year consensus for a nine-seat Court. The eighteen-year figure is not wrong for a nine-seat Court; it is simply inapplicable to a fifteen-seat Court.
Beyond the mathematics, comparative institutional evidence provides the strongest available empirical grounding. Germany's Federal Constitutional Court has demonstrated for over five decades that twelve-year non-renewable terms produce both independence and renewal in constitutional adjudication of the highest consequence. No comparable body of evidence supports eighteen years as a necessary or optimal duration.
The democratic accountability argument reinforces the comparative evidence. The question is not merely how long justices need to develop expertise -- it is how long unelected officials should exercise extraordinary power before the democratic system receives a structured opportunity to recalibrate. Presidential term limits answer this question for the executive branch at roughly eight to ten years. Twelve years is generous by that standard.
Finally, the structural integration argument is decisive. The FJBAA is not merely a term-limits proposal; it is a comprehensive institutional architecture in which the Senior Justice phase performs essential functions -- vacancy coverage, ethics adjudication, circuit service -- that depend on former justices reaching that phase while still vigorous enough to serve. Eighteen-year terms would populate the Senior Justice corps with septuagenarians and octogenarians; twelve-year terms populate it with justices in their late sixties, capable of decades of continued contribution.
The eighteen-year consensus deserves the scrutiny it has not received. It reflects the mathematical constraints of a nine-seat Court and the political logic of compromise more than a rigorous analysis of how long unelected officials should exercise unchecked constitutional authority. The FJBAA's combination of twelve-year active terms, a fifteen-seat bench, and a structurally robust Senior Justice phase produces a system that is more democratically responsive, more institutionally functional, and more honest about the nature of the power it regulates than any eighteen-year proposal in the literature.
Works Cited¶
Calabresi, Steven G., and James Lindgren. "Term Limits for the Supreme Court: Life Tenure Reconsidered." Harvard Journal of Law & Public Policy 29, no. 3 (2006): 769-877.
Carrington, Paul D., and Roger C. Cramton, eds. Reforming the Court: Term Limits for Supreme Court Justices. Carolina Academic Press, 2006.
Chilton, Adam S., Daniel Epps, Kyle Rozema, and Maya Sen. "Designing Supreme Court Term Limits." Southern California Law Review 95, no. 1 (2021): 1-69.
DiTullio, James E., and John B. Schochet. "Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms." Virginia Law Review 90, no. 4 (2004): 1093-1149.
Memo from John G. Roberts to Fred F. Fielding Regarding S.J. Res. 39. October 3, 1983. Santa Clara Law Digital Commons. https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1110&context=historical
Presidential Commission on the Supreme Court of the United States. Final Report. December 2021. https://www.presidency.ucsb.edu/sites/default/files/documents_with_attached_files/376063/168144.pdf
Roosevelt III, Kermit, and Ruth-Helen Vassilas. "Coming to Terms with Term Limits." American Constitution Society Issue Brief, 2017.
Sherry, Suzanna. "The Risks of Supreme Court Term Limits." Vanderbilt Law Research Paper 19-26 (2019).
The American Academy of Arts and Sciences. The Case for Supreme Court Term Limits. Cambridge, MA: AAAS, 2023. https://www.amacad.org/sites/default/files/publication/downloads/2023_SCOTUS-Term-Limits.pdf
U.S. Congressional Research Service. "Proposals to Modify Supreme Court Justices' Tenure: Legal Considerations." R46731. 2021. https://www.congress.gov/crs_external_products/R/PDF/R46731/R46731.1.pdf
Revision History¶
Revision 1.1 (Current) - Added "Nominee pool dignity and the end of actuarial selection" paragraph to The Case for Twelve Years section, following the three-phase career structure integration argument - Explains how life tenure creates actuarial selection bias that systematically devalues older, more experienced nominees; twelve-year terms eliminate this distortion entirely while eighteen-year terms reduce but do not eliminate it - Added "Nominee pool effect" row to Side-by-Side Comparison table after "Age at transition" row - Updated reference line to reflect FJBAA Rev 2.3
Revision 1.0 - Initial publication - Comparative analysis of 12-year versus 18-year active service periods - Incorporates historical tenure data, comparative institutional evidence, and structural integration analysis - Addresses arguments favoring terms longer than 18 years - Draws on Chilton et al. framework, Calabresi-Lindgren thesis, Sherry-Sundby critique, and FJBAA documentation suite
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Prepared by Albert Ramos for The American Policy Architecture Institute