The United States Is Alone
When defenders of the Supreme Court’s current structure argue that reform would be “radical” or “unprecedented,” they’re counting on Americans not knowing how other democracies structure their highest courts.
The truth? The United States is a global outlier—and not in a good way.
Among major democracies, the United States is alone in providing life tenure for members of its highest court. Alone in having no mandatory retirement age. Alone in having no enforceable ethics code with real consequences.
Every other advanced democracy has figured out how to have independent, respected high courts without giving judges unchecked, lifetime power. It’s time Americans learned what the rest of the democratic world already knows: accountability and independence aren’t opposites—they’re essential partners.
Term Limits and Mandatory Retirement: The Global Standard
The courts of last resort in Australia (70 years), Brazil (75), Canada (75), Germany (68) and the U.K. (70) all have mandatory retirement ages for their justices.
But mandatory retirement is just one approach. Many countries use fixed, non-renewable terms:
Germany: Federal Constitutional Court judges serve 12-year terms and cannot be reappointed. This ensures regular turnover and prevents any single generation or political movement from dominating the court indefinitely.
France, Spain, Italy: Nearly all countries with specialized constitutional courts impose fixed terms for judges, most of which are non-renewable.
Colombia: The Constitutional Court’s nine justices serve a single nine-year term—no extensions, no reappointments.
The pattern is clear: Even democracies that previously granted constitutional high court judges unbounded life tenure, including Australia, Canada, and the United Kingdom, have since abandoned this practice.
The United States stands alone in clinging to a system every other major democracy has rejected.
Bipartisan Selection: Making Courts Less Partisan
One of the most striking differences between the U.S. Supreme Court and high courts in other democracies is how judges are selected.
Germany’s Two-Thirds Requirement
In Germany, justices must obtain a two-thirds majority to be appointed—half elected by the Bundestag (parliament) and half by the Bundesrat (states). This supermajority requirement forces political parties to negotiate over nominees and identify candidates acceptable to both the left and right.
The result? German Constitutional Court justices are respected across the political spectrum. They’re seen as jurists first, not as representatives of partisan ideologies.
Canada’s Professional Committee
In Canada, a committee with a majority of professionals formulates a list of candidates, from which the prime minister selects an appointee. The process includes input from legal professionals, not just politicians.
South Africa’s Public Interview Process
South Africa’s Constitutional Court conducts public interviews of candidates. Citizens can watch nominees answer questions about their judicial philosophy, legal reasoning, and potential conflicts—bringing transparency to a process that’s shrouded in secrecy in the United States.
The U.S. Approach: Simple Majority, Maximum Partisanship
In the United States, a president can nominate anyone, and a simple Senate majority can confirm them. No supermajority required. No professional vetting. No public interviews.
The result is exactly what you’d expect: a Supreme Court where justices are selected specifically to deliver predetermined ideological outcomes, not for their legal excellence or judicial temperament.
Ethics and Accountability: Everyone Has It But Us
Perhaps the most embarrassing comparison is on judicial ethics.
The U.S. Exception
The Supreme Court’s nine justices are the only federal judicial officers who are not subject to a specific and binding code of ethics. While lower federal judges face enforceable rules and potential discipline, Supreme Court justices answer to no one.
In November 2023, the Court finally adopted a written code of conduct. But as critics immediately noted, the Court promulgated an ethics code that excused the Justices’ problematic conduct and included no enforcement mechanism, leaving the status quo largely intact.
How Other Countries Handle Ethics
Germany: Judges may be removed through impeachment, by formal disciplinary proceedings, or due to changes in court structure. The Federal Court of Justice has a special chamber that conducts disciplinary proceedings, including dismissal. Constitutional violations trigger removal proceedings in the Federal Constitutional Court.
United Kingdom: While the UK Supreme Court doesn’t have a binding ethics code, it maintains a Guide to Judicial Conduct covering conflicts of interest, gifts, and media conduct. The UK also has mechanisms for addressing judicial misconduct.
Canada: The Canadian Judicial Council published Ethical Principles for Judges and has procedures for investigating complaints. Supreme Court justices follow established tests for recusal based on whether an informed person would believe the judge could decide fairly.
Australia: The Australian Institute of Judicial Administration publishes a comprehensive Guide to Judicial Conduct outlining standards expected of all judges, including those on high courts.
International Standards: The United Nations Commission on Human Rights adopted the Bangalore Principles of Judicial Conduct in 2003, outlining six core values for judiciaries worldwide: independence, impartiality, integrity, propriety, equality, and competence.
Even U.S. States Do Better
The comparison gets worse. Every state supreme court (or equivalent high court) subjects its judges or justices to ethics reviews—similar to processes that apply to all federal judges except the Supreme Court.
The U.S. Supreme Court is literally the only high court in America without enforceable ethics rules. State courts, federal appellate courts, federal trial courts—all have accountability mechanisms. Only the nine most powerful judges in the country face no consequences for ethical violations.
Court Size: Flexible, Not Sacred
Defenders of the current nine-justice Supreme Court often claim that changing the Court’s size would be unprecedented. This is historically illiterate and ignores international practice.
U.S. History
As we’ve documented elsewhere, the Supreme Court’s size changed seven times in its first 80 years. The idea that nine is sacred is a modern myth.
International Examples
Constitutional courts typically have 9-16 members, including the Chief Justice:
- Germany: 16 judges (8 elected by each legislative chamber)
- Spain: 12 judges
- Italy: 15 judges
- South Africa: 11 judges
- Colombia: 9 judges
- France: 9 members (plus former presidents, who are lifetime members)
Court size varies based on each country’s needs and constitutional structure. No one treats a specific number as sacred or unchangeable. Countries adjust court size when necessary to ensure proper functioning.
The obsession with preserving exactly nine justices is uniquely American—and uniquely irrational.
What Other Democracies Teach Us
The international comparison reveals several crucial lessons:
1. Term Limits Work
Countries with term limits or mandatory retirement ages have independent, respected constitutional courts. Germany’s Constitutional Court is widely admired for its careful reasoning and institutional legitimacy. Canada’s Supreme Court commands public respect despite mandatory retirement at 75.
Term limits don’t undermine judicial independence—they enhance democratic accountability while preserving the rule of law.
2. Supermajority Selection Reduces Partisanship
When countries require supermajorities for judicial appointments, they get less partisan, more qualified judges. Germany’s two-thirds requirement forces compromise. The result is a court that isn’t seen as an extension of partisan politics.
The U.S. simple-majority confirmation process guarantees maximum partisanship and minimum consensus.
3. Enforceable Ethics Codes Are Normal
The idea that Supreme Court justices can’t be subject to enforceable ethical rules is uniquely American. Every other democracy manages to have ethical standards with enforcement mechanisms without compromising judicial independence.
4. Reform Is How Democracies Respond to Changed Circumstances
Countries create and reform constitutional courts in response to major political and social change. Post-World War II Germany and Japan created constitutional courts. Post-apartheid South Africa designed a new Constitutional Court. Post-Soviet Eastern European democracies established constitutional tribunals.
The idea that court structures are fixed and unchangeable is anti-democratic. Healthy democracies reform their institutions when those institutions no longer serve the people.
The American Exception
Defenders of the status quo rely on American ignorance of how other democracies work. They frame reform as “radical” or “court packing” because they hope Americans won’t ask: “How do other countries do this?”
The answer is embarrassing for Supreme Court apologists:
- 49 out of 50 U.S. states have term limits, elections, or mandatory retirement ages for their highest judges
- Every major democracy has either term limits or mandatory retirement for their high court judges
- Most democracies require supermajorities for judicial appointments, ensuring bipartisan selection
- All comparable democracies have enforceable ethics codes for their highest courts
The United States isn’t upholding some noble tradition of judicial independence. It’s clinging to an outdated system that every other democracy has abandoned—a system that produces exactly the problems we’re experiencing: partisan capture, ethical scandals, lifetime appointments of ideologues, and a Court that’s more interested in imposing its preferred policies than respecting precedent.
Conclusion: Learning from Our Democratic Peers
American exceptionalism shouldn’t mean accepting an exceptionally bad system.
When every other major democracy has figured out how to balance judicial independence with democratic accountability—through term limits, supermajority confirmations, and enforceable ethics codes—the United States looks less like a leader and more like an outlier clinging to a broken model.
The Supreme Court doesn’t need to be above the law to be independent. In fact, the opposite is true. The best constitutional courts in the world have term limits, ethical accountability, and selection processes that prioritize competence over ideology.
If Germany, Canada, Australia, the UK, and dozens of other democracies can have respected high courts with term limits and enforceable ethics rules, so can we.
The question isn’t whether reform is possible. The question is why we’re the only democracy that hasn’t already done it.