No, the Supreme Court Doesn't Need Term Limits

Long-serving justices are far likelier to be impervious to fleeting populist bugaboos and the political pressures of the day.


Some of you may believe partisanship is a healthy organic reflection of genuine disagreement in the nation, but for the well-known political scientist Norm Ornstein, there is nothing more devastating than inaction. Nothing. So years after lamenting the existence of partisanship, he's come up with another way to deal with our dawdling government: term limiting Supreme Court justices.

In the old days, you see, Supreme Court decisions were often unanimous. These days, there are too many close calls and too many overturned laws. This has nothing to do with the unconstitutionality of the legislation Congress happens to be passing these days but everything to do with the emergence of something called "ideology."

How do we stop it? More politics.

Limiting terms is hardly a new idea among those on the left who believe that a bunch of old codgers are holding up progress by taking all things too literally. The thing is that Ornstein's justification for term limits is selectively deployed. First off, when you dig a little deeper into his argument, you end up where you always end up when you dig into his argument: "Partisanship" and "polarization" equal "conservatives."

Ornstein notes how "asymmetric" things have become as "conservative justices have moved very sharply to the right, liberals a bit more modestly to the left."

In context, this is a laughable contention—when it comes to Congress but especially when it comes to the Supreme Court. It's true that the right has increasingly embraced original intent as its favored constitutional interpretation over the past few decades. And the left has basically remained unconcerned about constitutional limitations and individual liberty during that time. Liberals only moved modestly because there's not much room to move left.

Anyway, we can disagree about ideological temperament of judges and the positive/negative influence their ideas have on the court, but no independent observer (if one exists) could convincingly argue that Chief Justice John Roberts is more "partisan" than Justice Sonia Sotomayor or Justice Ruth Bader Ginsburg.

Steve Masker/Flickr

It is pretty clear, though, that through lifetime appointments, the Founding Fathers wanted to shield judges from the political pressures of the day. But an excellent byproduct of having ancient, long-serving justices is that they are far likelier to be impervious to the fleeting populist bugaboos and contemporary preferences that drive Ornstein's cause. This should be about the long game. Justices may be bewildered by technology, but on the bright side, some of them still believe that protecting free speech is more vital to a liberal state than sticking it to some plutocratic oilmen. This upsets Ornstein greatly.

Ornstein also finds it off-putting that the court is "increasingly active in overturning laws passed by Congress and checking presidential authority," from which we can only deduce that he believes we need a Supreme Court to rubber-stamp Congress and expand executive powers. Seems to me that a court's propensity to periodically "overturn" legislation (by which I think he means "find unconstitutional") probably means it's doing its job— though not nearly so often as it should.

Even on a practical level—and even if I believed that Ornstein is perturbed by polarization and not just conservatives—his stated reason for term limits doesn't make much sense. He argues that we can reduce polarization within the least political institution of government by subjecting it to more debate and more politics.

He claims that 18-year terms would lower the temperature on confirmation battles by making the stakes a bit less important. Really? We have presidential elections every four years. Does that seem to lower anyone's temperature? And just as every presidential election is the most important in our lifetimes, every confirmation battle would be the same. And because we would all know more often than not when those confirmation votes would take place, rest assured that the process would be longer and uglier and involve more money and influence peddling than anything we now experience.

But in the end, the most convincing argument against Norm Ornstein's case for term limiting Supreme Court justices comes from a piece by a political scientist named Norm Ornstein. If the Supreme Court, which is supposed to be immune from democracy's ephemeral demands, needs term limits to function properly, then surely politicians who have been entrenched in Washington for decades should be equally constricted. Well, two years ago, Ornstein (with Thomas Mann) penned a piece titled "Five Delusions About Our Broken Politics," in which he had this to say about the idea:

"Limiting the terms of public office is, in our view, utterly unresponsive to any significant dimension of our dysfunctional politics. It belongs in the same trash bin as smug reverence for the status quo, independent presidential candidates and balanced budget amendments."

So smug.

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  1. Ok fine, term limits for judges. That means we need term limits for the senate and House as well. Bye bye Schumer, Reid, Feinstein, Boxer, Pelosi and other scum I missed.

  2. "Liberals only moved modestly because there's not much room to move left."

    Are you for real?

    Anyway, a bit odd to see libertarians argue in favor of lifetime overlordship of government officials. But whatever. I agree about term limits for elected officials (that they're unresponsive to any actual problems in our system). But for appointed final arbiters of law? A bit monarchical for my libertarian tastes, but it's not like there's a whole fuck of a lot we could do about it anyway.

    1. There's not much daylight left between the likes of you and Stalin, and it's a very short hop around the circle to Nazi-style socialism.

      1. So Tony. Where is my fucking money ?

        1. Tony. Where is the fucking money you owe me ??? You need to pay your fair share. So where is it ??

    2. Tony|5.30.14 @ 4:58PM|#

      "...my libertarian tastes..."

      Your... your... what?

  3. *crickets*

    Anyhoo, I'm against term limits for Article III judges because we don't need yet another reason to hold a political circus in Congress. The clerks do all the work anyway.

  4. I've never understood why appeals courts get to rule by majority vote whereas juries have to be unanimous. I'd require them all be unanimous.

    I've never understood the schizophrenic treatment of juries either. During the trial, they are treated as fragile idiots who mustn't see any untoward evidence lest it taint their naive little minds; lawyers argue over what is admissible, and the judge orders them to pretend they didn't hear or see something.

    Then during deliberations, they are free as birds to vote anyway they want, with no record of what they considered and especially no logic chain, as if they are gods beyond the comprehension of mere lawyers and judges.

    I'd reverse all that. Let the juries see everything, let them ask any questions they want, but their verdict has to detail their entire chain of logic, from all the evidence they considered and the weight they gave it, showing every step of the decision that results in their verdict. And defects in that chain would be the basis for appeals.

    1. So you would basically get rid of the ability of juries to nullify bad laws?

      1. I didn't see that in there. They can vote how they like, but their thought process should be recorded for the purpose of appeal. If the defendant is acquitted, there won't be an appeal anyway.

      2. No, the jury would be king, wouldn't even have a judge, and the jury could nullify the law as long as they presented their chain of logic. They should also be able to declare a low entirely defective, apart from nullifying it for the single case, on grounds they couldn't understand it, it was internally inconsistent, etc. Defective laws would be voided in their entirety.

        And of course appeals could restore the law if the appeals verdict could show how the voiding verdict had a defective chain of logic.

        It would also be an interesting limit on appeals; each appeal could only appeal a verdict, and thus each would produce fewer and fewer points to appeal. No need for a supreme court or special appeals courts; just more juries considering a previous verdict instead of some actual criminal act.

        1. "We, the jury, find Orenthal James Simpson not guilty on both counts of murder because all white folk are racist." - The Jury

    2. hear fucking hear

  5. I think a long term limit for art 3 judges would be good - like 16-24 years, so you have the benefit of many political cycles. But it would only work if congressmen, senators, and presidents were limited to one term each.

    Also, anyone who serves in federal office should be banished from the country for a period of time equal to their service and forbidden, for life, from being employed in a non-elected position by the government.

  6. I'd abolish the Federal judiciary and let each State hear appeals from any other State; each party to a case gets one such appeal. That way, no one court is supreme, and precedents grow by a more organic consensus process.

    But if we must have Federal judges and a Supreme Court, how about this: one Supreme Justice is appointed every two years ? i.e. one for every combination of President and Congress, excluding lame duck periods. The jackpot effect ("This election is vitally important because the next President could have ninety-leven Supreme Court appointments!!!") thus goes away.

  7. I agree. We don't need term limits for the Supreme Court. we need the ability to toss out their decision when they are stupid. I've been working on this for a while.

    Essentially a court of the States which could also be used to try impeachments more fairly than the Senate and than can't be bogged down by the normal litigation system.

    Section 1: This article establishes the States' Court; each State shall have one justice as a Member, appointed by the Legislature thereof, for no more than one term; the judicial Power of this court shall extend to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States.

    The States' Court may only take a Case when petitioned by a State Legislature or Governor, but upon the petition of the majority of States, the States' Court shall take the Case.

    The rules of the States' Court may only be changed by the concurrence of two-thirds of the Members present.

    The decisions of the States' Court shall supersede the Supreme Court.

    Section 2: Congress shall provide funding for the operation of the States' Court, but all compensation paid to Members shall come from their respective State.

  8. Section 3: Any federal official who is elected, or appointed by the President, can be impeached by the House of Representatives.

    The States' Court shall have the sole power to try impeachments; when sitting for that Purpose, they shall be on Oath or Affirmation. No Person shall be convicted without the Concurrence of two-thirds of the Members present. Government secrets shall not be kept from this court.

    Any willful attempt by an official to undermine this Constitution, or violate their Oath to Office shall be considered a high crime against the United States.

    The President shall take care to faithfully execute the law, as written; willful disregard of the law shall be considered a high crime against the United States.

  9. I've thought for a long time that there should be at least 12 SC justices, but 12 is a nice round number, and all decisions must be unanimous. These federal circuit courts with 3 justices have to have more, man. I mean, 2-1 decisions all over the place. WTF man?

  10. 20 years is plenty. That will end the arms race to pick justices for their age, and older justices hanging on for as long as they can to only quit when one of their guys is in the White House to appoint a replacement.

    And yes, term limits for Congress and the Senate too. 12 years each. Then go home.

    1. Rather than lifetime limits, I'd say: no one while in office may be a candidate for the same office.

  11. Personally I'd have supreme court judges appointed by the states restoring their power over the federal government. Each state would be allowed to set their own selection and term requirements. Each case would be assigned the request number of judges by random and public drawing. Selection removes the justice from the pool until the full rotation has been completed.

    This would increase the capacity of the court to try more cases, hopefully lowering the bar for selection, and give them a stake in the states rather than the executive.

    1. Well that was the whole point of having the US Senate be appointed by state legislatures. That train left the station 100 years ago.

  12. Congress could use term limits though,

  13. If one does not support SCOTUS term limits, they are effectively saying that mental and cognitive decline does not occur. But it does. Big time!

    Airline pilots (commercial) have to quit at 60. Why?

    Because they cannot be responsible for certain life and death decisions......
    Here is one chart:

    Of course, individuals may be better or worse than the chart - perhaps a test is in order?

    I'd favor a test before they could even be chosen - that is, tests to make sure they are not classified as mentally ill, have abilities to reason, etc.

    Then perhaps a test every 5 years starting at 75?

    The idea that a 95 year old Judge should be making decisions which affect hundreds of millions of people who are going to be around long after Your Honor is buried seems crazy. Skin in the game is always important.

    I would not appoint a 95yo to run a train, fly an airliner, do brain surgery or program in C++.

    So, either we are saying judging doesn't require normal intelligence and cognition...or, we are saying we don't care.

    1. Yes, because being a Justice requires keen hand eye coordination and the ability to make split second decisions.

      Are you in favor of similar tests for all elected officials? Or just Justices? Did you feel the same way when your lefty heroes carted Strom Thurmond in for one last vote?

  14. Supreme Court doesn't need term limits because they've been a complete statist toady ever since FDR threatened to pack it. If the influence of that is reaching its expiration date (and its a safe bet that everyone who believes in SC term limits also believes in the wisdom of FDR packing the court); then all that is needed is a new threat to the court from a new dictatorial Prez.

  15. Totally unconvincing. If a judge serves for several years and produces junk, irrational decisions (As Sotomayor has started), or if nascent Marxist/Anti-Constitutional trends accelerate in a judge, then it should be easy to remove them. Senility is obviously a problem. Give them a review board to continue or not, giving an extension only in truly excellent jurists.

  16. Sorry writer but you are wholly lost about almost all you write about here. So are your "notable" references.
    When the Constitution was written in 1787, there were no publicly funded schools of law and the existing schools of law were not scattered among the colonies. The creation of the Judicial Oligarchy was done because lawyers who grew up and practiced in the various colonies were EXTREMELY RARE. Practicing law was not and has never been a popular life.

    To ensure enough justices well-trained in law with relevant formative life experiences existed; There was no other options in 1787 except using the elderly and hoping the new nation developed a pool from with to choose ASAP.

    Term limits would clearly require an impossible knowledge of the future in 1787 because the justice pool for selection was TINY and shrinking. The entire pool of justices could ONLY contract because of deaths with no refilling of the pool. Newly eligible candidate take roughly fifty years of life. Therefore; until roughly 1820 there would not be another steady crop of candidates from which to choose. This fact is obvious isn't it. It must not be. Perhaps I am a polymath instead of just a genius because of the vast injustices I see in America?

    Partisanship has allowed the United States be overthrown by America from 1928 till the McCutcheon ruling repealed equal access to democracy.

    1. America is now a corporate oligarchy where the wealthy corporate population exerts ideological fiscal pressures under the cloaks of partisanship. Supreme Court Justices are now coached and monitored throughout life the corporate oligarchy for consistent Ideologies. Appointed by one presidential "ideology" after establishing the required fifty years of consistent ideology; The nominated oligarch establishes significant confidence of a future ideology and ruling tenor. This fact is obvious isn't it. It must not be. Perhaps I am a polymath instead of just a genius because of the vast injustices I see now in America?

      37 U.S. States attempt to require or require mandatory retirement around 70 except for one of 90.
      See http://judgepedia.org/Mandatory_Retirement

      Most law respecting nations on earth require retiring by age 68-70 and you can read and see the life rule oligarchy of America be called undesired by a lawyer in New Zealand at the following link.

      1. I will/would never submit ANOTHER Appeal to the immoral GEEZER oligarchy of SCOTUS.
        I have advised the Eighth Circuit of this in my pending appeal.

        See from http://theendofpornbywire.org/14-3447/Brief Supt. Renewal of Motion to Appeal as Pauper.html#21
        8. Unfortunately these [prior filings] all have improper tenor because of an inviolate belief that "during good behavior" requires retiring from public service by seventy years of age. This belief is as firm as Plaintiff/Appellant's belief in God and is shared by most U.S. States and the vast majority of the nations from the European Union and requires only an Act of Congress to define "during good behavior" and no CONSTITUTIONAL AMENDMENT like will never again occur in the corporate "American" regime.

        9. Senescence affects human brains as certainly as rust affects exposed ferrous metal. The effects of time on the human body are factual and certain though the impact of time on the mind is not predictable except for the irrelevance of formative life experiences.

        10. The critical need for hard-to-find legally educated judges was the foundation for Article III not requiring retirement by age seventy due to the lack of legally educated citizens and lack of publicly supported law schools.

        1. All my PENDING legal filings have only one honorable moral answer and this is ordering a JURY trial to set PUNITIVE damages for MSFT, and GOOG, and establishing compensatory damages for each FCC commissioner and ordering these five appointees to cease ignoring Federal Laws already requiring regulation of wire communications as the Title II Common Carrier it has always been. NO [HOLY] NEW MEDIUM will ever exist. This future will allegedly be announced on 11/11/2014 or tomorrow. This will then be an admission against the FCC Commissioners own interests. This will probably be quietly dismissed by another group of angry Eighth Circuit oligarchs anonymously.

          It might be obvious by next week why GOOG invested half-a-million against me already and already offered me five-million to stop. This fact is obvious isn't it. It must not be. Perhaps I am a polymath instead of just a genius because of the vast injustices I see now in America that I must fight until I finish dying.

          Maybe I am just a severely brain injured "idiot" who can type and prove the severity of a radical TBI on a formerly advanced intellect?

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