Supreme Court

Term Limits for Supreme Court Justices Won't Save Us

But they might be worth trying anyway.

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FRANZ JANTZEN/KRT/Newscom

Debates over the merits of lifetime appointments for Supreme Court justices are literally older than the Supreme Court itself.

Alexander Hamilton tackled the question in Federalist 79, contrasting the lack of any limits on Supreme Court justices' tenure with the rules for judges in New York State, which at that time forbade anyone over age 60 from serving on the bench. Hamilton ultimately dismissed worries about judges becoming unable to discharge their duties in advanced age—"The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it"—and concluded that those worried about a "superannuated bench" have an "imaginary fear."

More than two centuries later, there is still no limit on how long Supreme Court justices may serve. That makes the Court an outlier not just among global democracies but within the United States. Most states have mandatory retirement ages for judges (usually at age 70 or 75), and some require sitting judges to face the voters at predetermined intervals for up-or-down retention elections.

Many of the arguments in favor of placing limits on judges' tenure are the same as they were in Hamilton's day: concerns about the mental fortitude of elderly jurists, or of a Supreme Court that grows out of touch with the nation whose laws it reviews. Unlike in Hamilton's time, though, it is hardly uncommon for judges to remain on the bench well past age 60. Indeed, the average age of the eight current Supreme Court justices is over 67 years. Justice Ruth Bader Ginsberg, who is 85, says she wants to remain on the court until she is 90.

But the acrimonious fight over whether Judge Brett Kavanaugh should be given one of those lifetime appointments has introduced a new angle to this age-old debate. Term limits "would make the current system fairer—and tone down the intensity of the confirmation process," David Leonhardt opined in the The New York Times last month. It would also impart other benefits, he added: removing aging judges from the high court, for example, and giving the Senate a predicable schedule for handling its advice-and-consent duties.

Since we're facing the prospect of a Supreme Court with a solidly conservative majority for the foreseeable future, it's probably not surprising that term limits are generating new interest on the left. Ezra Klein has already drawn a link between Kavanaugh's contentious confirmation process and reality of a lifetime appointment. His Vox colleague Lee Drutman has been more explicit, writing in June that "it's time for term limits for Supreme Court justices."

"If justices were staggered in their terms, everyone in Washington would know they'd have another opportunity to change the Court again soon enough," he wrote. "This regularity could also move toward more of a norm of fair play."

The most well-formed plan for term limits comes from Fix The Court, a nonpartisan group interested in making the Supreme Court more open and accountable. (They also favor TV coverage of oral arguments and making judges file annual financial disclosures.) Fix The Court favors fixed 18-year terms, allowing every president to nominate a justice in the first and third year of each term.

Chart by Eric Boehm

If 18-year term limits had been imposed in the past, the current makeup of the Supreme Court would change only slightly. Right now there are four justices nominated by Democratic presidents and four (soon to be five) nominated by Republicans. Using Fix The Court's system, the current court would have a 5–4 Republican slant, with President Donald Trump getting ready to replace one of President George W. Bush's picks next year.

This arrangement, the group says, would solve "key problems with the court that have led to the extreme partisanship and harmful polarization we see today."

This appeal to civility is one that might find a receptive audience after the rancorous Kavanaugh hearings. Would term limits (or age limits), and the predictability they provide to the presidents and senators responsible for choosing and confirming Supreme Court justices, save us?

Probably not. Would the stakes really be that much lower if Kavanaugh were in the running for an 18-year term on the court? With everything else being equal—in other words, with the current conservative-liberal split and the potential fate of abortion law hanging on the outcome—the promise that Kavanaugh would merely sit on the bench until 2036 would probably not bring Democrats down from the barricades, nor would it make Republicans any less likely to push for his confirmation.

Orin Kerr, a law professor at USC Gould and a contributor to the Volokh Conspiracy blog (which Reason publishes), is similarly skeptical—though as we'll see, he favors term limits for other reasons. "It would still be one politician doing the nominating and 100 politicians doing the advising and consenting," he says. "It's an inherently political process."

The politicization of the Supreme Court is worrying, but fixing it is a larger project than merely setting fixed terms for justices. As Sen. Ben Sasse (R–Neb.) observed during the early stages of the Kavanaugh confirmation process, the heightened role of the Supreme Court has as much to do with the failings of the other branches of government as it does with anything inherent to the court itself.

"When we don't do a lot of big actual political debating here, we transfer it to the Supreme Court, and that's why the Supreme Court is increasingly a substitute political battleground in America," said Sasse. "It is not healthy."

Even if judicial term limits aren't a bulwark against a hyper-partisan environment that's increasingly spilling over into the Supreme Court, the idea is worth considering for other reasons.

For one, people seem to like it. A Morning Consult/Politico poll conducted in July—just after Justice Anthony Kennedy announced his retirement—found that 61 percent of voters favored term limits for Supreme Court justices, including majorities of Democrats, Republicans, and independents.

For another, it would openly acknowledge something everyone already knows: that control of the Supreme Court is a reward for electoral success.

The Founders intended lifetime Supreme Court appointments to buffer the justices from political interests, but it's clear now—if it wasn't already when Republicans held a vacant seat on the court open for the final year of President Barack Obama's term—that both sides view Supreme Court appointments as the spoils that come from controlling other branches of government.

If the high court is going to be politicized anyway, it makes sense to have those seats be democratically accountable.

"If the Supreme Court is going to have an ideological direction—which, for better or worse, history suggests it will—it is better to have that direction hinge on a more democratically accountable basis than the health of one or two octogenarians," says Kerr.

Imposing term limits would require a constitutional amendment, which may be an impossibly heavy lift. It's also not clear how the transition would work: Which current justice gets the boot first? And it's not difficult to envision stumbling blocks once the system was up and running. Fix The Court's proposal would have presidents nominating judges in the first and third years of each term, but there's no mechanism to stop, say, a Republican-controlled Senate from refusing to have a vote on a Democratic president's third-year nominee and holding the seat open.

There would be unintended consequences too. Knowing that the winner of a presidential election will get two Supreme Court nominees could change the behavior of voters and candidates, possibly making presidential contests even higher-stakes affairs than they are now, when winning carries only the possibility of influencing the makeup of the court.

In all likelihood, nothing will change. We will continue to muddle through with the same broken process. Term limits, or the lack thereof, will not fix the underlying problems plaguing all aspects of the Kavanaugh confirmation process.

It may be that the questions about how long a judge should serve are as impossible to answer today as they were in 1788 when Hamilton was writing about them.

"The result, except in the case of insanity," he concluded in Federalist 79, "must for the most part be arbitrary."

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  1. 25 years for Senators and Representatives sounds better!

    1. Term limits are a bad idea, as it will only Fourier concentrate the legislative power into the hands of unelected and unaccountable staffers.

      If a majority of idiots wants to keep re-electing the same asshole, I say let them. Term-limits seems like a backdoor to kicking out elected officials that non-constituents don’t like.

      1. “Fourier” should be “further”

        1. Your spell correct is smarter than my spell correct.

      2. Which is why the government should be prohibited from initiating force.

      3. That is exactly what happened in Ohio after we implemented term limits. The Legislature did end up with less power but it didn’t return to the people. It was immediately swept up by the unelected bureaucrats.

        1. Yup. And party bosses. And lobbyists. At least that has been the California experience.

      4. Let’s try it and see. The current system obviously sucks. Can’t hurt to try something else.

    2. Term limits for *all* federal employees but military.

    3. 3 terms 2 years each,,,,,, for a senator.. Here in AZ we would’ve not had a mccstain nor a flake..

  2. Since women tend to live longer than men, obviously the solution is to impose term limits based on gender discrimination avoidance.

    1. You mean require at least half to be women?

  3. This is a joke, right?

  4. Here are a few suggestions I have had for a while:

    1) Repeal the 17th Amendment and require state legislatures to actually select and appoint Senators as the original Constitution required. The Senate was supposed to be a bulwark against the ever shifting “will of the majority” found in the House. This would also have an impact on the makeup of the Senate, potentially leading to a more even split of Senators. It would still be partisan, but at least it would function the way it was meant to do.

    2) Pack the Supreme Court with No less than 18 Justices. This can be done over time to prevent any one president from packing it in their party’s favor. This is a requirement for my next suggestions.

    3) All justices should sit in the hearings for all cases. All are free to ask questions.

    4) Only a random selection of 9 justices will ever rule on a case. That 9 is not known publicly until the final ruling. If one of the selected Justices is unable to rule due to a conflict of interest, disability, retirement, or death, a replacement is selected again at random from the remaining pool.

    This allows there to always be 9 justices ruling on every case. It prevents tied rulings during contentious nominations such as what has been happening the last 2 years. It prevents political parties from complete control over the outcome of cases. It creates what I think would be a more fair check on the abuses of the other two branches and the states.

    1. 1) Agreed
      2) Meh
      3) Meh
      4) Oh hell no. The current system is bad enough, but the prospect of the the 1st or 2nd amendment being subject to the dice roll on which justices you get strikes me as a terrible idea. Also, if the full 18 justices voted on which cases to hear, you’d constantly be rehearing the same case law, as people hope that they get a different set of judges.

      1. Strongly agree with the repeal of the direct election of Senators – the argument against the idea is the same “undemocratic!” argument used against the Electoral College by people ignorant of the idea of federalism and state sovereignty. The Senate was not designed to represent the interests of the people of the various states, it was designed to represent the interests of the states themselves as sovereign entities co-equal with the federal government within the scope of their authority. But nobody believes we have a federal government any more, we have a national government and the states are subservient to that government.

        1. The key mistake is the assumption that “democracy” is inherently good. It’s not, and the founders didn’t believe it was. It was viewed as one of several safeguards of liberty, specifically against tyranny, but as susceptible to abuse as any other form of government, specifically mob rule. Hence, checks on democracy were put in place.

        2. The popular election of Senators is what effectively killed federalism and gave us the partisan Senate we have today. When Senators were appointed by the states, they owed their allegence to their state not to a political party. So, if a President did something to offend the interests of their state, they would stand up regardless of party. Once they were elected, their loyalty was to their party and thus would never check a President of their own party. That is a big reason why we are where we are today.

          1. A majority of states had already adopted popular election of Senators before the 17th amendment was proposed. Technically, the constitution pre-17th amendment did not say that the state legislatures would select their states Senators, it assigned to the legislature of each state the authority to decide HOW to select their states Senators.

            While at the beginning, the original 13 state legislatures decided to appoint the Senators themselves, they could just as easily and just as constitutionally have given the appointment power to the governor or adopted popular election from day 1.

          2. What argument is there that senators wouldn’t just do the bidding of the people who appointed them then? Who says senators will inherently just argue for only the good of their state?

    2. 1) Technically, the original Constitution did not require state legislatures to directly select and appoint Senators. I left to each state legislature the decision on how their Senators should be selected. While most state legislatures did the appointment directly to start with, 29 states had already provided for the direct election of Senators before the US Congress passed the 17th amendment 1912 and/or it’s ratification in 1913.

      US Senate

    3. “Pack the Supreme Court with No less than 18 Justices”

      With the potential for an actual constitutionalist majority on the court, it’s time for court packing!

  5. A fine and wonderful idea that ranks right up there with laws against gerrymandering in terms of fairness. It’s just a damn shame that the issue is only ever pushed by the minority party and only so long as they are the minority party. There’s something magical about becoming the majority party that changes one’s thinking about what constitutes fairness.

    1. Yeah, amusing to see people complain about too much power for the president etc when it’s not their party, when you’ve been screaming the same thing for 30 years. Oh *now* you get it?

      1. Who’s got the pen and the phone now?

  6. Brain scans for all SCROTUS candidates!!! Make them STOP lying about “I have no opinion on that; I just rule based on the law”.

    They ALL have opinions, they ALL have assholes, and most of them ARE assholes!!!!

  7. So weird how term limits for justices and gerrymandering are only recent topics of conversation in these pages.

  8. End the sham that is confirmation hearings; interpret the Constitution as it is written; forcefully exercise the impeachment power when the judiciary oversteps its bounds.

    It’s that simple and doesn’t require constitutional amendments.

  9. I like the idea of having more like 18-20 old fools on the court, and mandatory retirement at 75. Back in Hamilton’s day, almost nobody made it past 60 so senility wasn’t an issue unless you ate tomatoes of lead plates.

    1. I would get rid of them having clerks instead. The biggest reason they are able to stay on the court so long is that they have clerks there to write their opinions for them. Take away the clerks and make them do the work and very few of them would stay on the court past 75. A few would and that would be fine. i don’t have a problem with someone staying on the court as long as they are up to the job.

      1. There’s an article there John.

  10. You want diversity? You want turn-over? Increase the SC to 900 justices, and set term limits to 10 minutes, staggered every 2/3 second. This will let 5 million people serve every year, and provide entertaining reality court TV.

    1. Everyone gets to rule on exactly one case!

    2. Jay Leno picks one person at random.

    3. A pool of judges – nominated by the states – from whom, in each case, 9 are picked at random. I’m not saying it would work (see below), I’m saying it might be fun.

  11. The constant gnashing of teeth on reason over the court being so political is ridiculous and frankly counter to libertarianism. Libertarians are skeptical of democracy and the power of the majority and see courts as a bullwark against the majority. That is all well and good. And libertarians are correct in thinking that. The problem is reason at least seems not to appreciate the implications of that.

    The only way to make the court and the nomination process apolitical would be to adopt a full on philosophy of legal restraint where the court deferred to the legislature in all but the most egregious circumstances. What makes the court so political is the fact that the court so frequently overrules legislatures and the popular will. And reason is fine with the court doing that, provided it is giving them something they want. And indeed, the entire liberatian view of courts as protectors of rights against tyrannical majorities requires it. You can’t expect courts to overrule legislatures in the name of “rights” and constantly bag on the the proponents of judicial restraint and deference the way reason does and then claim not to want the court to be poltiical. The two things are mutually exclusive.

  12. If SCOTUS is going to act like a super-legislature, then they need to stand for election and re-election in some way.

    1. Calling for more elections is a totally libertarian position and definitely not just a progressive talking point

      1. I will actually defend Jeff on this one. They already are indirectly elected since both the President who appoints them and the Senate who confirms them are elected. And the Congress can remove them if enough of them want to do so.

        Lots of states elected judges. I don’t know that electing them is any worse than appointing them. Electing them at least has the virtue of being more honest than the federal system of everyone pretending they are some kind of sacred priesthood that is supposed to be above politics even though they are just as political as anything else in governement.

        1. And the Congress can remove them if enough of them want to do so.

          Congress isn’t passing enough water on the tree of liberty…

          1. I think Congress should remove a few federal judges every year just to make sure the others understand Congress can do it.

    2. Yeah, because one way to improve our society is to make everything more like Congress!

      1. Maybe it wouldn’t “improve society”, but it would acknowledge reality.

  13. Term limits “would make the current system fairer?and tone down the intensity of the confirmation process,”

    It would also represent a “controlled burn” of government power (as Robby posted earlier in the week) that’s desperately needed.

    When Tony (rightly) points out that Kavanaugh is going to be one of the most powerful people on the planet, that’s your cue that the Supreme court has way overstepped its mandate and creates a situation where one president doesn’t solidify a vision for the next two generations.

  14. I foresee a conservative majority until the Democrats are able to enlarge the Supreme Court.

    1. Court packing… that’s a novel idea.

      1. And if they ever did it, the Republicans woudl of course never respond and do the same thing or just reduce the number of justices back to nine and send the new liberal ones packing. No never.

        It amazes me how these backwoods morons like the Rev can never seem to think anything through.

        1. Yeah, back in July, there was talk from the idiot media class of Democrats doing a court-packing if Trump didn’t nominate a moderate to replace Kennedy.

          Maybe at least wait until your opponent isn’t in a position to do exactly that before tipping your hand?

  15. How come paring back government interference in everyday life to the point where the choice of a SC justice isn’t a life and death issue is never an option that’s on the table?

    1. Because that would mean undoing all the end runs around the Constitutional amendment process that the statists have engineered via
      creative” interpretation for the last 100 years or so.

      And there would be an endless barrage of media squealing about how that would be end of the world as we know it.

      1. Yeah, I can see where losing the ability to just make up shit would be a problem. And the media squealing would be quite annoying, too.

      2. It’s the end of the world as we know it, and I feel fine…

  16. The only “nonpartisan people” are those who don’t give-a-care about the issues, and who therefore wouldn’t earn a law degree and become a judge, or a justice.

    1. Don’t forget careerists who punch their tickets and get all sorts of honors, then when they become judges insist they’re going to be “pragmatists” – that is, pragmatically following prior decisions or, failing that, following the zeitgeist and what the legal establishment wants judges to do.

      1. The careerists are the Deep State.

        Government of, by, and for the government.

        I’ll take partisans over the Deep State Party any day.

    2. I think you assume that most people who practice law care about the issues. Most of the lawyers I have met don’t give a rip about the issues or the truth. They care about winning, partnership, and money.

  17. Contrary to the expectations of the Framers, the federal courts have not become the “least dangerous branch,” but a very powerful branch from which large numbers of people expect decrees enforcing particular policy preferences. What the military is in certain unhappy countries – an unelected institution which interferes in government – the courts are in this country.

    If I had an answer to the situation, I’d insert it here, but for now I’ll just put a blank: The answer is ____________.

    1. I’m not speaking of the perfectly legitimate role of the courts in holding the government to the *written* constitution – in principle this is highly important; I have a beef, however, with the courts’ view of what it means to have a written constitution, and how flexible that constitution should be short of amendment.

  18. Key part of going to 18-year terms is to stagger them, so one justice is appointed every two years. Thus each presidential term has two appointments.

  19. Clearly only Superman can save us now… but who will save Superman?

  20. I think we should limit members of the house and senate to two terms each and ban lobbying first.

    I also think that the Advise and Consent Panel should be made up of 13 appellate court judges – one from each circuit – elected through “blind” nomination process meaning that on some date at the end of August or early September each year – all the justices in the 94 districts have a 5 minute electronic window of opportunity to anonymously vote for someone from their circuit and the votes are digitally counted and the announcement made within the hour who is chosen and then they show up at the assigned time for an intranet digital hearing process, each in their own office so no politicking can be done during the interview process.

    I also think that any university administrator, attorney, or law professor, that bows to pressure from student groups to silence ideas or, opinions, or in any way seeks to limit the free exchange of ideas (popular or not) should have a lifetime ban from a judicial appointment.

    Such a person or institution has already failed the US Constitution.

    1. Advise and consent is outlined in the Constitution and the power granted to the Senate. To do as you propose would require amending the Constitution and that is never going to happen because the Senate will never give up only of its most powerful political tools.

  21. I forsee unitary-control Democrats adding justices #10 & #11 in 2021.

    1. I foresee the Right concluding that free and lawful coexistence with the Left is impossible.

    2. They have to win both Houses and that is not likely since they keep engaging in such stupid partisan acts like they have during the Kavanagh confirmation fiasco. Democrats keep pushing more to the left and becoming more and more unhinged which is not a positive thing with most of the country contrary to the propaganda from the MSM.

  22. it wouldn’t necessarily require a Constitutional amendment. The Senators could withhold their confirmation unless nominees promised to retire at XX years. That promise might not be legally enforceable, but a justice would look pretty bad if he broke itl.

    1. You mean like members of Congress promising to retire after X number of years and then not retiring yet keep getting re-elected?

  23. “We’re losing! Quick! Change the rules!”

    How about we just institute a mandatory retirement age of 80, starting tomorrow?

  24. “ALL” in government,, even justices should be/have term limits.. SENATORS especially,, !!! AND !!! IQ TEST!! Because flake wouldn’t be even considered for a/the daug catcher position!! I watched him cowar to that splittail ,,,,,,,,,,,,,,,, he must have been abused as a child!!

  25. This proposal is orthogonal to the “actual” problem, which I think is judges making laws rather than interpreting them. A governmental law should arise from legislation, rather than “case law” or stare decisis.

    What I would propose to fix the “actual” problem would be to require a high supermajority for decisions, and for those cases that don’t gain a supermajority, that the minority formulate a constitutional referendum question that clarifies the concept found to be vague. Voting on those questions would be in the form of Yea, Nay, and Meh.

    Now, this is no panacea, since, for example, Dred Scott v. Sandford was settled 7 to 2, as was South Dakota v. Dole.

    But at least it would it would provide some justification for the argument that our government is a result of a social contract and that we are governed under our own consent, at least in some vague, collective sense.

  26. NO, it just leads to more often having to deal with all the partisan politics of confirmation.

  27. This will never happen for one good reason. If there were a proposal for placing term limits on Supreme Court justices, Congress knows they would also be term limited at the same time. Voters are sick of life long professional politicians so any amendment to limit the SCOTUS will also include limits on Congress since there is no way to justify two branches of the Federal government being term limited and not the 3rd when the people are most disgusted by the Legislative branch. In addition, if you plan to have an amendment to limit the term of the SCOTUS, the proposal would likely be expanded to cover the entire Federal justice system and all judges would be term limited. Of course that would make the confirmation process even more political which again, could only be solved by term limits for Congress and that is never going to happen.

  28. Excuse me? A bunch of senators misbehave and your solution is to put term limits on Jurists so the senators will have more opportunity to repeat their misbehavior?

    If you want to change the behavior of folks, change their incentives. The appropriate place for term limits to address this behavior is on elected politicians, not Jurists. [I’m not necessarily against limiting tenure for Jurists, too, but that’s not going to fix the problem w/ senators or congresspersons.] And we should want a strong form of term limits, like 2 elected terms (or appointment to a normally elected office) in a person’s life. So 2 terms as a congressperson or 2 as a senator or 1 of each or one as president and one as library commissioner, etc. This would change the incentives for elected politicians so that they would NOT need to spend the majority of their lives begging for support (that’s spelled m-o-n-e-y) and so they would have to live the remainder of their lives living in the society about which they had legislated. This change would change behavior. No more folks who make millions while in office. No longer possible for special interests to make a ‘lifetime buy’ of a politician. Of course to get it implemented, we’d have to grandfather in all the currently elected politicians or they would never allow it to come to a vote.

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