Term Limits for SCOTUS Justices
Here’s a good four year-old article from Stephen Calabresi and James Lindgren making the case for abolishing life tenure for Supreme Court justices. Their mathematically sensible advice is that justices should serve for a fixed term of 18 years. This is longer than the historical average for the Supreme Court but considerably shorter than the post-1970 average of 25 years.
A new justice would be picked, on schedule, ever two years. This would eliminate the risk of what happened during the Carter administration when nobody died or retired and consequently by 1992 all the justices had been selected by Republicans. It would also formalize the rhetoric around the idea that “elections have consequences” by specifying in advance what those consequences are.
I don’t have high hopes this will happen, but really there’s no powerful interest group out there that should have a chance to block it. Americans have become, I think, unduly hesitant to tinker with our political institutions. Historically we’ve changed things up quite a bit over the years and I don’t think anyone denies that SCOTUS fights have become problematic. The answer is to update a constitutional provision that was written by people who couldn’t foresee the importance of the Supreme Court in modern politics or the impact of increased life expectancy.
27 Responses to “Term Limits for SCOTUS Justices”
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May 6th, 2009 at 8:45 am
I don’t think the text of the constitution is as clear as the authors suggest.
IF judge, THEN good behavior does not mean IF good behavior, THEN judge. That should leave loads of room for the courts to say “Judge Panicker, you are on good behavior, but you have been a judge for too long (and we are too embarassed to remove you from office for senility).”
Of course the actual interpretation of this passage (by judges of course!) is likely to disagree.
May 6th, 2009 at 8:47 am
Fixed terms would prevent ancient, mentally deteriorating judges staying on trying to outlive an unfriendly administration, but I don’t think you’d be able to regulate the rate at which SCOTUS appointments are made – early retirements and deaths would continue and that would disrupt the flow of judges.
May 6th, 2009 at 8:56 am
I think instead of making judges retire, you just select one new justice every two years (odd-numbered, so off-election). There is nowhere that the number nine is written in ink (ask FDR), and there’s no reason that Kennedy should continue to have additional power because there’s no one to challenge him. I’d recommend that this practice be implemented starting in 2013.
May 6th, 2009 at 9:00 am
” I don’t think anyone denies that SCOTUS fights have become problematic”
So the answer is to have more of them? Please explain how 18 years set is that different from 25 in any type of policy horizon that anyone cares about.
May 6th, 2009 at 9:05 am
I’m sure nobody saw the unchecked growth of a sprawling federal government when the 17th amendment was passed, but sure as shit, it’s passage led to just such growth.
I’m sure nobody saw marginal tax rates over 30% when the 16th amendment was passed, but it happened.
law of unintended consequences says its a bad idea to fiddle with the framer’s handiwork, but you’re all about confiscatory tax rates and sprawling federal government, so why wouldn’t you be
May 6th, 2009 at 9:07 am
Could sitting justices be re-nominated at the end of their first term?
If so, would a woman justice from a minority group who was finishing up her 18 years as an Associate Justice of the Supreme Court be described as an unqualified affirmative action nominee by National Review upon being re-nominated?
May 6th, 2009 at 9:08 am
Also, this isn’t really related to anything, but term limits would mean we could have a higher average age on the court. When the President is not trying to pick someone young who will be on the court for 30 years, he can pick someone older with many years of experience. At the same time the age-limits do address the risks of senility (exaggerated by whipper-snappers like Calabresi and Lindgren).
May 6th, 2009 at 9:11 am
I don’t see how term limits would make us any better or any worse. It could make us a lot worse. Ultimately all the posturing in the Court is really about Roe v. Wade (thankfully only David Duke cares about Brown v. Board of Education). If we replaced a judge every two years, then Bush would have gotten four picks, and Roe v. Wade would probably be dead. Ultimately I almost agree with the conservatives on this one. Leaving abortion rights (or wrongs) to the Court is not workable in the long run. Besides that, it has really warped/subverted the entire selection process to how a judge might rule on a single issue. Maybe is would be best if the right to choose was explicitly included in the constitution. But then maybe I am dreaming.
May 6th, 2009 at 9:23 am
but I don’t think you’d be able to regulate the rate at which SCOTUS appointments are made – early retirements and deaths would continue and that would disrupt the flow of judges.
You could have replacement Justices appointed just to serve out the remainder of such terms. The stakes would be lower, and this would be a good opportunity to make use of some excellent lower-court judges who happen to be too old for even 18-year terms.
If we replaced a judge every two years, then Bush would have gotten four picks, and Roe v. Wade would probably be dead.
Clinton would also have gotten four picks, and Obama would be about to appoint his first to round out the Court.
May 6th, 2009 at 9:42 am
“I’m sure nobody saw marginal tax rates over 30% when the 16th amendment was passed, but it happened.”–ike
It was at 67% in 1917 and didn’t go back below 30% until 1925. In other words just 4 years after the amendment was passed, it broke the 30% barrier. I’m not an historian, just did a two minute google search, but what I remember of my High School history is that the Populist Party advocated a progressive, high top margin tax as far back as 1890s.
May 6th, 2009 at 9:43 am
Clinton would also have gotten four picks, and Obama would be about to appoint his first to round out the Court
True, but it is hard to overturn precedent. If Roe fell, it would take a heck of an argument to accomplish it. However, once invalidated Roe would be very hard to reinstate 4-8 years hence. Nothing is impossible but then we would set ourselves up for a fight (and possible law change) every 4-8 years (as Presidents changed) which would really mess things up. The point is that the important issues (like abortion) should be taken away from the Court by enacting them explicitly to law.
May 6th, 2009 at 9:44 am
I don’t find this persuasive. That which is problematic about the appointment process for a ~25 year term will be similarly problematic about the appointment process for an 18 year term. And I should think that we don’t need to futz with the supreme court to prove to people that elections have consequences. If they don’t know it by now, they’re just not going to get it.
We have a big disagreement about abortion, and it’s not going to be resolved by tweaking procedural rules.
May 6th, 2009 at 10:23 am
PPM,
DO you remember what else happened in 1917 from your HS history class?
Like maybe America going to war? A war that had to be paid for perhaps?
May 6th, 2009 at 11:02 am
Nothing is impossible but then we would set ourselves up for a fight (and possible law change) every 4-8 years (as Presidents changed) which would really mess things up.
All this is possible with the status quo. The term-limit proposal only makes this more predictable, but that very predictability removes some of the negative-sum gamesmanship (e.g., exclusively looking to appoint Justices in their 40s or early 50s).
The point is that the important issues (like abortion) should be taken away from the Court by enacting them explicitly to law.
Congress changes too.
May 6th, 2009 at 11:12 am
Judges on New York State’s highest court serve 14 year terms, subject to mandatory retirement at the end of the year in which the judge turns 70. (If they are under 70 at the end of the 14-year term, they can be re-appointed, as former Chief Judge Kaye was.) Why 14 years? It used to be life tenure and when people were squabbling over how long a fixed term to give, someone averaged out the actual length of service of all the life-tenured judges and came up with 14.
May 6th, 2009 at 11:12 am
A constitutional amendment would not be required. Yale law prof. Jack Balkin recently laid out how to implement this over at Balkinization.
May 6th, 2009 at 11:19 am
“but really there’s no powerful interest group out there that should have a chance to block it.”
That might be true in the abstract but practically, I think the Republicans would go nuts if term limits were proposed. There is a conservative majority on the court right now and given the age of the conservative justices, this is likely to continue throughout Obamas first and probably even second term. Why would Republicans want to jeopardize that? And if the process of replacing justices starts with seniority, the first three towould go would be conservatives (Scalia, Kennedy and Thomas).
At any given time switching to term limits would prejudice either liberals or conservatives. This is why, just like the other structural changes you would like to see, it will never happen.
May 6th, 2009 at 11:28 am
by 1992 all the justices had been selected by Republicans.
Whizzer White, who retired in 1993, was selected by Kennedy; he just happened to suck. (Like a reverse Blackmun/Stevens.)
May 6th, 2009 at 12:37 pm
My own vote as the most needed constitutional reform is to make amending it a lot easier. How about 2/3rds of both houses and a presidential signature?
By the way, I’ve been reading a lot on the blogosphere lately about SC term limits. Is anybody in Congress actually considering getting the ball rolling? How do we make that happen?
May 6th, 2009 at 2:41 pm
How will you decide which justice gets replaced first?
May 6th, 2009 at 2:44 pm
I think it’s a horrible idea to involve the president in amending the constitution. It’s bad enough that he has veto power over the representatives of the will of the people (if anything, the people themselves should have that veto power).
I do agree that changes to the constitution are incredibly difficult but somehow that hasn’t stopped us from passing quite a few amendments over the years, even some that perhaps were not such great ideas. I don’t know what the answer is.
May 6th, 2009 at 2:46 pm
Yeah, I like this sort of idea in theory more than in practice. Mandatory retirement seems like a no-brainer, but having a SCOTUS fight every year–I guess the good thing would be that maybe people would just get exhausted after so many of them and they’d become uncontroversial.
I might be wrong, but I think you’d be able to impose term limits by a simple law rather than a constitutional amendment, since the Supreme Court isn’t mentioned at all in the Constitution (the Chief Justice is, oddly) and was created by the Judiciary Act of 1789. We ought to do something, but term limits seems like a pro vs. con situation to say the least.
Interesting fact: The Confederacy created a Supreme Court but never seated any justices for fear they’d gain too much power. Also, the Confederate Constitution was virtually identical to ours. Also, it was populated by racists.
May 6th, 2009 at 2:57 pm
There are lots of ideas for how to manage the transition, but one of the simplest is just to lay out a staggered schedule, say starting in two years. The sitting Justices would still serve indefinitely, but their replacements would take their seats as if they took the first unfilled slot on that schedule. The result could be some relatively short transition terms if some of the Justices served longer than the schedule (e.g., if the Justice you replace retires in 2017, but the last unfilled slot was scheduled to begin in 2014, you would get three years less than the scheduled term). But again I view that as more a feature than a bug, because it would give an opportunity for some potentially excellent Justices who might otherwise be deemed too old.
May 6th, 2009 at 3:15 pm
Wouldn’t this lead to much more volatility in court rulings? If you started with a balanced court of 5 generally ‘conservative’ votes and 4 generally ‘liberal’ ones, one conservative presidential term could tip the balance to 7-2, enough to pass all kinds of crazy stuff. Then, two liberal presidential terms later, the balance could tip all the way back to 8-1 in the progressives’ favor, enough to overturn everything from the past four years and pass another set of crazy rulings.
May 6th, 2009 at 4:51 pm
[...] First, Matt Yglesias says that the Court should do away with lifelong tenure and set up term limits of 18 years. Under this system, a new judge would be appointed every two years, ensuring that every President [...]
May 6th, 2009 at 8:30 pm
Wouldn’t this lead to much more volatility in court rulings?
Of course there is already turnover in the composition of the Court, and 18 year terms would not be much different than the historic average. Again, what this would do is make that turnover more predictable.
May 6th, 2009 at 10:36 pm
In the eyes of joe from Lowell, a fat cat, inexperienced crony of whomever happens to be president at the time would be clearly more qualified than any 18 year veteran supreme court justice who happens to be a woman or a minority.