Supreme Court Biennial Appointments and Term Limits Act of 2026
- Sponsor
- Sen. Whitehouse, Sheldon [D-RI]
- Committees
- Judiciary Committee (primary)
- Last action
- Jul 22, 2026
Bottom line
This bill fundamentally alters the structure and appointment process of the Supreme Court by implementing effective term limits for appellate service and regularizing judicial appointments.
What it actually does
This bill amends title 28 of the United States Code to establish a system of regular, biennial appointments for Supreme Court justices, ensuring one appointment in the first and third years of a presidential term. It also limits the number of justices who hear appellate jurisdiction cases to the 9 most recently appointed, while allowing all justices to preside over original jurisdiction cases and other duties. The bill outlines procedures for filling Chief Justice vacancies and other permanent vacancies to maintain a minimum of 9 justices.
Proponents argue
Proponents argue this bill would depoliticize the Supreme Court appointment process, reduce partisan battles over vacancies, and ensure a more consistent and representative judiciary by preventing justices from serving for excessively long periods. They contend it would restore public trust in the Court's impartiality and make the judiciary more accountable without directly challenging lifetime tenure for all judicial duties.
Opponents contend
Opponents would likely argue that this bill is an unconstitutional attempt to pack or restructure the Supreme Court, undermining judicial independence and potentially leading to a more politicized judiciary as presidents could reliably appoint two justices per term. They may also contend that creating a distinction between appellate and non-appellate justices infringes on the lifetime tenure established by Article III of the Constitution.
The bill is concise and its core provisions are easily digestible, allowing a reader to quickly grasp its significant implications for the Supreme Court's structure and function.
Section 2(a)(1) amending 28 U.S.C. 1
Establishes Number of Justices and Quorum with Differentiated Roles
This provision states the Supreme Court shall consist of a Chief Justice and not fewer than 8 associate justices, with 6 constituting a quorum. Crucially, it differentiates between justices who hear appellate cases (only the 9 most recently appointed) and all justices who hear original jurisdiction cases and may continue to exercise all other official powers and duties.
Supporters argue
Supporters contend this clarifies the Court's composition and ensures a functional quorum while allowing for a larger pool of experienced jurists to handle other judicial duties. They argue it addresses concerns about judicial longevity and ensures regular turnover in the appellate bench.
Critics contend
Critics might argue that creating a two-tiered system for justices undermines the equal standing of all appointed justices and could lead to confusion or challenges regarding judicial authority. They also contend it is an unconstitutional circumvention of lifetime tenure.
Tradeoffs
This provision balances the need for a consistent number of active appellate judges with the desire to retain experienced jurists for other judicial functions, while also addressing concerns about judicial longevity.
Section 2(a)(3) adding 28 U.S.C. 7(a)
Regular Biennial Appointments of Justices
This section mandates that the President shall appoint one Supreme Court justice within the first 120 days of the first and third years of a Presidential term. If a nomination is withdrawn or disapproved by the Senate, a new appointment must be made within 120 days of such action. This establishes a predictable schedule for appointments every two years.
Section 2(a)(3) adding 28 U.S.C. 7(a)(3)
Limitation on Appointments Based on Non-Appellate Justices
This provision prohibits the President from appointing a new justice if the number of justices who do not hear appellate jurisdiction cases is already 9. This effectively sets a cap on the total number of justices serving in a 'senior' or non-appellate capacity, indirectly influencing the overall size of the Supreme Court.
Section 2(a)(3) adding 28 U.S.C. 7(c)
Filling Permanent Vacancies to Maintain 9 Justices
This provision mandates that if a permanent vacancy (due to death, resignation, retirement, or removal) causes the total number of justices of the Supreme Court to fall below 9, the President shall appoint individuals as necessary to bring the total number of justices back to 9. The term of such an appointment begins immediately upon being made, outside the regular biennial schedule.
Section 2(a)(2) amending 28 U.S.C. 3
Procedure for Chief Justice Vacancy
This section specifies that if the Chief Justice is unable to perform duties or the office is vacant, the next in precedence associate justice acts. In the event of a permanent vacancy in the office of Chief Justice, the first appointment of a justice made under this chapter following such vacancy shall be to the office of Chief Justice of the United States.
This bill effectively introduces term limits for Supreme Court justices' appellate duties by stating that 'Only the 9 most recently appointed justices... shall preside over appellate jurisdiction cases.' However, all justices retain the ability to preside over original jurisdiction cases and exercise other official powers. This creates a two-tiered system where justices transition from active appellate service after a certain period, implied by the regular biennial appointments.
Section 2(a)(1) amending 28 U.S.C. 1(b) and (c), and Section 2(a)(3) adding 28 U.S.C. 8(1) and (2)
Why it matters:This is a highly consequential change framed as an amendment to existing structure and definitions, which can make its full implications less immediately obvious than a direct 'term limits' clause. It might be phrased this way to avoid direct constitutional challenges to 'term limits' for Article III judges, instead redefining their functional roles.
Case for: Proponents argue this is a constitutional way to introduce regular turnover and prevent justices from serving for excessively long periods, ensuring the Court remains more aligned with contemporary society and reducing the impact of individual justices' longevity on national policy. It allows for a predictable transition and retains experienced jurists for other duties.
Case against: Opponents argue this is an unconstitutional circumvention of Article III's lifetime tenure for judges, as it effectively removes justices from their primary judicial function (appellate review) after a certain period. They contend it politicizes the judiciary by ensuring presidents get regular appointments and undermines judicial independence.
Estimated impact: Fundamentally alters the nature of Supreme Court service, creating a distinction between active appellate service and other judicial duties, and ensuring regular turnover in the appellate bench, with profound implications for the Court's composition and decision-making.