Supreme Court

Calabresi Urges Supreme Court Term Limits

Limiting justices to a single 18-year term would de-escalate judicial confirmation fights.

|The Volokh Conspiracy |

In today's New York Times, Northwestern law professor Steven Calabresi, co-chairman of the Federalist Society, recounts his mutual admiration for the late Justice Ginsburg makes the case for imposing term limits on Supreme Court justices. From the op-ed:

Supreme Court justices often try to retire during the presidency of someone sympathetic to their jurisprudence. Of course, that doesn't always work: Justice Scalia died after almost 30 years on the high court trying to wait out President Barack Obama, and Justice Ginsburg died after nearly 27 years trying to outlast President Trump.

Over all, though, strategic retirements give the justices too much power in picking their own successors, which can lead to a self-perpetuating oligarchy. The current system also creates the impression that the justices are more political actors than judges, which damages the rule of law. It may even change the way the justices view themselves.

The specific proposal is straightforward and in line with what others have proposed: Each justice serves for a single 18-year term. With the size of the Court fixed at nine justices, this would mean one new justice every two years. Terms are staggered so that nominations are made in the first and third year of each presidential term. This means a one-term President gets two nominations; a two-term President gets four nominations. (My co-blogger Orin Kerr outlined a similar proposal on Twitter the other day.)

Calabresi notes than an 18-year term would not pose a treat to judicial independence, but would eliminate the incentive to pick comparatively young nominees. It would also eliminate the problem of strategic retirements. For what it's worth, an 18-year term is longer than terms for equivalent judicial offices in other constitutional democracies.

The details matter, as do transition rules.

In the case of early retirements or deaths, the president would nominate and the Senate would confirm a replacement to fill out the unexpired term with no possibility of reappointment.

Justice Ginsburg's successor should serve an 18-year term. The eight current justices should draw lots as to who serves terms of two, four, six, eight, 10, 12, 14 or 16 years as the amendment goes into effect.

Failure to confirm a justice by July 1 of a president's first or third year should lead to a salary and benefits freeze for the president and all 100 senators, and they should be confined together until a nominee has been approved. The vice president would act as president during this time and the Senate would be forbidden from taking action whatsoever on any of its calendars.

I will admit I am not entirely sure about this last bit - how and where would such confinement occur? how would it be enforced? - but the underlying principle seems right to me.

Limiting or cutting off the terms of existing justices would undoubtedly require a constitutional amendment. But a forward-looking proposal of the sort Calabresi outlines might be achievable by statute. The relevant constitutional language has always been understood to require life tenure, but there may be room to redefine the duties of the office. For instance, a statute could define the office of Supreme Court justice as 18 years serving as part of the Supreme Court, followed by continued judicial service riding circuit and filling in on the Supreme Court in cases of recusals or temporary vacancies. No justice would be removed from office or have their salary reduced, so this might do the trick. (Of course, whether the Supreme Court would uphold such a law in a legal challenge is another question entirely.)

There are other issues to consider were Supreme Court justices term-limited, such as whether there should be limits on types of future employment (to limit the incentive to rule in favor of potential future employers, a problem that sometimes arises on state courts), and whether a similar term limit should be imposed upon other judges. Nonetheless, the underlying idea of term-limiting justices to turn down the temperature on Supreme Court nominations is a good one.

NEXT: Today in Supreme Court History: September 23, 1971

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  1. It won’t eliminate strategic retirements. Justices can always resign before the 18 years are up, rather than wait until year 18 when an opposite party President might be in office.

    But it will greatly decrease the number of old, no longer competent judges hanging on.

    The problem is that this very sensible proposal needs Republican support and they won’t give it. They’ve gamed the system so successfully that they control the judiciary and they want their judges sitting for as long as possible.

    1. Sometimes….

      “In the case of early retirements or deaths, the president would nominate and the Senate would confirm a replacement to fill out the unexpired term with no possibility of reappointment.”

      So, in case of a “strategic retirement,” the replacement would get a shortened term, and the seat would still be up when an opposite party president is in office.

      1. Sorry, I missed that!

    2. Why is it that the GOP is always supposed to lose?

      We’ve finally gotten rid of the leftist majority and now we’re supposed to surrender. Bullbleep.

      1. Because you don’t represent the views of the majority of the American people. Which doesn’t mean you should *always* lose, but you sure shouldn’t be winning as often as you do.

        1. The hell we don’t represent the majority — this is a center-right country with a vocal leftist majority. And everytime we win, there’s an expectation we surrender. Nuts…

        2. Everytime a major focus of the election is judges the GOP wins.

          In fact I think that it’s a tactical error for the GOP to confirm a justice before the election, in purple states with a lot of blue collar voters like Pennsylvania, Minnesota, Michigan, Wisconsin, etc, the voters know a that Biden will nominate a gun grabber for the court, and it could be enough to swing a close election.

          But I guess a the benefits of a solid majority of constitutionalists shouldn’t be trivialized either.

          1. Kazinski, assuming everything you say is true, and I’m not sure it is, the GOP “wins” only because we have anti-democratic elections. If you side wants to honestly acknowledge that you don’t have to care what the majority thinks because the rules are stacked in your favor, that would be one thing. It’s your side’s claim to speak for the majority that’s getting old.

            1. The one constant in American politics is no party stays in power much longer than 8 years and the best way for a party to switch control of congress is to have the other party take the Whitehouse. I doubt tinkering around the edges is going to reverse that. The truth is the electoral system is pretty responsive to the voters.

              Despite widespread claims that Hillary won the popular vote, she actually didn’t. She had a plurality of the popular vote not a majority. Which shows a pretty evenly divided electorate.

            2. No, we have anti-majoritarian elections. Democracy is not merely two wolves and a sheep holding an election to decide what’s for dinner.

  2. Truthfully, age 80 seems like a good bar (quintuple chai). At that stage, decline inexorably happens. I could see putting an upper age limit on SCOTUS justices. That would require a change to the Constitution, though….that is not so easy to do.

    This proposal….no.

    1. Ooops…my math was off. Sorry. I need more coffee!

      1. Yes, not quintuple chai (which is 90). But four score!

    2. It does seem a little rigged against the current GOP.

      There are a few issues.

      1. The average age of the 5 GOP-president nominated justices is 63. The average age of the 3 Democrat-nominated justices is 69. This means the 18 year term would cut against the GOP-nominated justices more harshly, age wise

      2. Another way to is look at the average term length served by SCOTUS judges. To look at this, we’ll look at the last 9 who have left the bench. They served an average of 28 years on the SCOTUS. (Rehnquist and Stevens each served 34 years!). Taking a time when there is a GOP-nominated majority on the bench and suddenly cutting the effective time down by 64% isn’t really that non-partisan.

      3. This is made worse by the “Lot” system for current justices. That’s an average of 9 years for everyone left on the bench, which is VERY low for some people. And the random lot makes it a much worse. One could easily see Gorsuch having to retire at 55 if he got the 2 year draw, while Breyer (at 82) somehow got the 16 year term.

      Those are some of the reasons it doesn’t make a lot of sense right now.

      1. How could this be fixed and made more non-partisan?

        One way would be for the 18 year term limit to apply, but just to FUTURE Supreme Court nominees. Not the current one, and not past ones, when there are obvious partisan calculations at play. By having it apply to the future, no one knows who will appoint who, when.

        So, the next nominee would just be for an 18 year term. The one after than would be another 14-20 year term, with the timing altered as needed, so the appointments were staggered appropriately. (IE, if the opening came up sooner, it would be a 20 year term potentially. Much later, would be a 16 or even 14 year term).

        This would lead to the current crop of SCOTUS nominees being the last lifetime appointments, and slowly move everything over to an 18 year term system.

        1. The 18 year term limit does present some issues however. The question is, what would the judge do AFTER 18 years, if they weren’t really ready to retire, and were looking for another position? And how would that potentially affect their court decisions?

          1. Do what retired Justices do already and sit on the occasional appellate case.

            IMO this should be tied to Presidential terms. 2 per tern or something.
            Handle the transition by allowing the current batch to continue their lifetime tenure, and then have placeholder Justices after to space them out appropriately.

            1. “Do what retired Justices do already”

              But those justices were ready to retire. When you’re “not” ready to retire (but looking to do something else instead), it might skew your decision making process.

              Let’s take Rehnquist for example. He has a historic career as a SCOTUS judge. Nominated in 1972. Ultimately he would serve until 2005. But under this system, he would be forced off the court at age 65, in 1990. What does Rehnquist do? He’s still quite capable at 65, and enjoys the wheels of government.

              While saying he’d run for VP might be a stretch, what would be much more likely is Rehnquist as Solicitor General of the United States. Or Attorney General. Who better than the old Chief Justice of the United States?

              What would that do to the apparent “partisanship” of the court though? Having a SCOTUS judge go straight to being a SG or AG for one of the major parties?

              1. In 1916 Hughes quit the Supreme Court to run against Wilson and Wilson got to replace him in an election year and Wilson’s nominee was unanimously supported. Hughes would serve on the Supreme Court again years later. So maybe what we should be doing is making the Supreme Court less important??

            2. How about rather than kicking them out of the courts completely, at the end of their term, they are “demoted” back to one of the Circuit Courts. That way, they still technically get their lifetime tenure.

              As part of this, the President will be required to select new nominees for SCOTUS from the current roster of Circuit Court judges. So the end of term Justice get’s his/her relacement’s seat in the Circuit Courts.

        2. You could address most of your concerns by assigning the new terms by age rather than randomly (i.e., the oldest current justice gets stuck with the 2 year term and the youngest gets the 16 year term).

          This also has the consequence of making the arrangement fairly favorable for the GOP in the short term, so perhaps more likely that they’d support it. (On the other hand, it makes it harder to get Democratic support.)

          1. jb,

            Not that much more favorable. The oldest is currently Breyer at 84, he’d get a 2 year term. Next would be Thomas, but he’s only 72, and he’s have 4 more years. After that would be Alito, he’s 70, so 6 more years. Then Sotomayor (66) at 8 years, then Roberts (65) at 10 years.

            SCOTUS judges often last till at least 80 if not longer. (Not always, but often, and often beyond) This would basically cut at least 10-15 years of “GOP judges” off, while only cutting 5 or so of “Dem-judges” off, for the first 5 judges.

            The next 3 doesn’t really help either, because Gorsuch and Kav are relatively young, compared to Kagan.

    3. In NJ, there is an age limit of 70 for all judges and justices. When I was an associate, we had a retired judge working in the firm. Very nice man, with good insights on the law. I think he missed being a judge.

    4. I agree with mandatory retirement at 80. I also think now’s not the right time to consider any of these proposals. Third, once the new nominee is confirmed, interest in this issue will disappear.

    5. Wisconsin is weird, its Constitution says that the legislature must set a retirement age for its Supreme Court Justices of not less than 75 years… but the legislature has never actually gotten around to doing that.

  3. For the transition, why not start appointing new justices every two years in 2021 while letting the existing justices serve out their terms? The court will expand until the existing justices either retire or die, but that doesn’t seem like a big problem, and it avoids the issue of retroactively shortening terms.

    1. First, that approach would create significant periods where we have an even number of justices – which historically we’ve had before – and it’s a bad idea. It’s bad enough during the nomination process and that’s only a few months. Your approach could make that the norm for years at a time.

      Second, that would create even more game-playing during transition period. No currently-serving justice would ever retire since doing would cost “their side” a vote. You are effectively condemning all the current justices to die in office.

      Third, it would throw many of the court’s workflows and assignments of responsibilities into chaos. Not everything is hearing and deciding individual cases. You’d be completely reorganizing responsibilities for the various districts at every change. You’d be expanding the court and finding room for new clerks only to have them go away again in a few years. It would be a logistical nightmare.

  4. Now lets do the same for Congress and civil service.

    1. Actually we should get rid of the civil service act and return to the patronage system. It would have a lot of benefits:

      – no more deep state
      – vastly shrink the size of government because you just can’t hire a few million people in 4 years.
      – increase contracting and competion decrease politicazation of essential services.
      – make government more responsive to the will of the people.

      1. Hear! Hear!
        Finally someone championing an effective approach.

  5. “Now lets do the same for Congress and civil service.”

    Term limits for congress & time limits for civil servants. Certainly would go a long way to reducing the class size dependent on taxpayer money while reducing the “government industrial complex”

    “education industrial complex”, etc

    1. Every few years, this suggestion pops up. For some reason, none of the proponents ever study what happened when states imposed term limits.

      Ohio did just that a while back. We gleefully thought that by term-limiting our state senators and representatives, it would reduce their power and that power would revert to the people. Well, it did reduce their power but the power was immediately sucked up by unelected bureaucrats. We, the people, got screwed. We at least had the option to vote out the worst of our elected officials. Getting rid of a bad bureaucrat is almost impossible.

      Term limits sound great. But when you look at how they actually work in practice, not so much.

      1. “Term limits sound great. But when you look at how they actually work in practice, not so much”

        thats is why Sam Groupers and I included civil servants in the term limit proposal.

        1. Then you just end up with lobbyists doing even more than they do now.

          1. Why do these same types of arguments not work for justices?

        2. And if the civil servants are limited, they’ll be focusing on their future employers…

        3. Term-limiting bureaucrats doesn’t reduce their power, either. They just shuffle from one office to another. Your proposals sound great but evidence from the states that have tried it show that they will have the effect of entrenching existing power even more than it already is.

      2. Same thing happened in Maine — and the specific Speaker it was aimed at gamed the system and remained.

      3. The Administrative Class needs to be rethought too.

        Why do we have unelected bureaucrats with so much power? Because the chickenshits in the elected positions outsource their power to these unelected civil servants so the politicians don’t take any heat for details.

        That’s also why the elected officials have let the Judiciary gain so much power.

        They are siphoning away the power from the people and giving it to their unaccountable and unelected allies in the Administrative State or the Judicial System.

        Look at how much controversial law these lifetime appointed jurists make now-a-days on socially charged issues .

        Look at how much law-making power “independent agencies” and their unelected and unaccountable bureaucrats have been given by Congress.

        Look at how much of our federal budget is “mandatory spending” (it’s 60%).

        Politicians are cowards who build systems to enrich themselves and their patrons while immunizing themselves from any real accountability (90% + reelection rates).

      4. The same for Florida. Lobbyists have increased their power, elected legislators have more pressure to accede to party leadership’s demands, and once elected legislators are almost always looking beyond their current position for the next elected office to run for — House members run for the Senate, then county commissions, property appraisers, election supervisors, etc.

  6. “. . . would not pose a treat to judicial independence”

    Indeed not. Maybe a trick, though.

  7. “For instance, a statute could define the office of Supreme Court justice as 18 years serving as part of the Supreme Court, followed by continued judicial service riding circuit and filling in on the Supreme Court in cases of recusals or temporary vacancies.”

    If a statute could do that, it could also define the office of Supreme Court justice as serving as part of the Supreme Court until the President or Congress is displeased with the justice, followed by, etc.

    1. It couldn’t necessarily do that. But as noted below it could structure things so they are facially neutral timelines, but actually work to the advantage of the party in power.

  8. Another problem with asking justices who do not wish to retire to leave the court is that they’re going to need something to do.

  9. An 18-year Supreme Court justice followed by a lifetime service as a senior circuit judge is such a different office from a lifetime Supreme Court justice that I suspect a majority of the Supreme Court would have no problem finding that such a change requires a cobstitutional amendment. The difference in name – Judge vs. Justice – is not purely semantic. It acknowledges that the two offices have very different powers and duties.

    It is one thing to give judges and justices the option of retiring and moving to senior status. But making such a change mandatory is clearly a dimunition.

    If Congress has the power to remove justices from the Supreme Court after 18 years, it would also have the power to move an individual justice to senior status by statute after a shorter timeframe. For example, instead of the proposed schedule, it could for example change the time of moving to senior status to January 20 following a presidential election year, vacating all the offices simultaneously when a new president comes in, and simply not enact a requirement that retired justices can’t be renominated. This would give a favored incompimg president free reign to replace the entire suoreme court with whomever he wants, at least for the duration of his office. It could effectively remove disfavored judges and justices by putting non-renominated ones on a special court adjudicating disputes between the President’s cats (and no other matter) if it wants. Congress could take advantage of the general tendency of divided government by enacting removal legislation, changing the court, and then repealing its removal legislation before the inauguration of the next president, on an occassion where the same party controls the presidency and congress, locking its advantage in until the other party controls everything and can do the same.

    What Congress can do fairly, they can just as easily do to partisan advantage. Having Justices decide when they retire is not just far less dangerous than having Congress decide it. It’s the decision rule that’s in the constitution. It should be respected.

    Congress does not and shod not have power to remove justices from the supreme court involuntarily by restructuring the definitions of their offices.

  10. add it to the agenda for a Constitutional Convention. if we’re gonna make fundamental changes to our structure of governance, lets do it right and get all the issues out there and let the people decide how they want to be governed.

    as schumer says, nothing is off the table, including state exits

  11. Hmmm. I wonder if an office that consists of 1/9 of the Supreme Court is fundamentally the same office as 1/11 of the Supreme Court. IIRC we’ve enlarged the court once in the past, but IDK if any judges made that argument.

    And we know from experience during the New Deal that this type of change in the nature of the “office” of Supreme Court Justice can have precisely the effect that the good behavior clause sought to avoid.

    1. Bad news, clingers: The Supreme Court has been enlarged at least four times. Enlargement is plainly consistent with established law and repeated precedent.

      House majority + Senate majority + presidential signature (or lack of veto) = American progress.

      Four helpings, ideally, next spring.

  12. Like Vincent LaGuardia Gambini, I think I’ll choose option B — kick conservatives’ asses in November and collect four Supreme Court confirmations next spring.

    After that, if any Republicans want to negotiate, we can talk.

    1. I understand that Trotsky’s villa in Mexico is available for rent. Great weather in the winter. The property does have some violent history, so the rent is cheap.

    2. “…and collect four Supreme Court confirmations next spring.”

      Effectively eliminating the offices of four other Justices? I don’t think that’s allowed, Arthur. Violation of the Good Behavior clause, you know.

      1. You appear uninformed with respect to the relevant law.

        Perhaps you will be educated next year.

        1. I doubt it Kirkland because you’re not winning and getting what you want.

        2. “Perhaps you will be educated next year.”

          Perhaps, although I don’t know if anyone has raised this particular argument before. If they have, perhaps it’s time to revisit it, especially given the effect that FDR’s threat had on the court.

          Perhaps the court will educate us all.

      2. He means they are going to pack the court with four more seats.

        IOW Joe Biden and Kamala Edith Wilson Harris are going to accomplish what Franklin Roosevelt was unable to accomplish.

        1. FDR didn’t even openly admit that was his intent — this is worse.

        2. “He means they are going to pack the court with four more seats.”

          Yeah. Reading this thread has made me think that there’s a colorable argument that court packing alters the nature of the current justices’ offices to the point where it violates the Good Behavior clause.

            1. That court-packing, for the purpose of diluting or nullifying the votes of the current justices, violates the Good Behavior clause by fundamentally altering the nature of the office such that the Justices effectively no longer hold the same office.

              1. Flailing, sputtering clingers are among my favorite culture war opponents.

                1. Right back atchya, Arthur.

              2. There have been several acts expanding and shrinking the size of the Court, and none have been successfully challenged (to my knowledge) on the basis of good Behaviour. Even if doing so “fundamentally alter[s] the nature of the office” there’s no guarantee in Article III of a particular office, besides that of “Judge[] . . . of the supreme [court]”. The only thing that the Constitution says you can’t do to them is lower their compensation during their term.

                I can maybe see a good Behaviour argument for passing term limits applicable to existing judges, but it seems like a remarkable stretch that court-packing would implicate good Behaviour at all. Setting that aside, I doubt the Supreme Court would ever agree to decide the issue on prudential grounds (political question). It would require them to resolve whether increasing by 3 or 5 or having the total number 7 rather than 9 is the dividing line. In light of that it falls squarely (in my view) under the Baker considerations.

                1. “there’s no guarantee in Article III of a particular office, besides that of “Judge[] . . . of the supreme [court]””

                  It says “hold their offices…” not “hold some office”, which sure sounds like a guarantee of a particular office, and it has to mean something beyond preventing their compensation from being lowered or it would be surplusage.

                  The point if the clause was to prevent judges from serving at the pleasure of the political branches and to insure the judges could only be removed through impeachment. Changing the nature of the office such that a judge’s decisions are nullified effectively removes them from office.

                  And that’s why I don’t think the political question doctrine works either. The whole point of the clause is to remove this particular question from the political branches, outside of impeachment.

          1. Just because so many BS arguments have won that our threshold for viewing an argument as “colorable” has gotten really low.

            Court packing is unambiguously constitutional. Lots of bad ideas are. You can’t write a constitution that excludes every bad action, at some point you have to just stop and assume the people running the government aren’t utter fiends. And figure people will find some way to deal with it if you turn out to have been wrong about that.

            1. “Court packing is unambiguously constitutional.”

              Do you think it would be unambiguously constitutional to do it to a single judge?

              Congress doesn’t like Judge Smith’s decisions, so voila! Judge Smith’s court is now a three-judge panel, with two new more-friendly judges.

                1. As I said above, it effectively removes the judge from office, such that he serves at the pleasure of the political branches, which is what the clause seeks to avoid.

      3. If the left wants to talk “fairness”, it includes jailing those in the attempted coup.

    3. Kirkland make a good case why he GOP should force a choice of a new Justice.
      Once the balance id 6-3, the D’s must expand by 4 or 6, numbers that many American may find too large to be politically acceptable.
      Not confirming a new justice means that the the D’s need only add 2 for a majority leftist court. My guess is that 2 is politically much more palatable to independent voters.

      1. Four will be as easy as two. Maybe even easier . . . less fussing over a particular candidate.

  13. (Of course, whether the Supreme Court would uphold such a law in a legal challenge is another question entirely.)

    News flash: they wouldn’t

    1. How could the Court hear such a case? All current SCOTUS justices would have a career interest in the result, so should recuse. 28 USC §294 would seem to allow the Chief Justice to appoint retired Supreme Court justices to fill the empty seats, but only two of those are available and a quorum requires six.

  14. Why not just wait until Trump wins, then make the court 15 judges, and require they all resign every time another republican wins?
    Any deaths or resignations during a Democrat presidential term cannot be filled, and if it results in an even number, the Republican members of the Senate caucus and appoint a replacement.
    I mean, really, if we are going partisan, let’s really go partisan.

  15. I like this idea. Let’s table it for now, and take it up when there is a majority of Democratic-appointed justices on the court. Might be a few decades.

  16. Justice Thurgood Marshall is quoted as saying, “I have a lifetime appointment and I intend to serve it.” I think the whole strategic retirement thing is overthought. Is there any evidence that Scalia “hung on” to deny Obama the ability to fill his seat; what is it that people believe Scalia would have rather done during those years than be a Supreme Court Justice. Democratic supporters were a lot more interested in Ginsburg’s retirement than she seemed to be.

    Judges, as a whole, do what they want to do when they want to do it. There may be a number of factors involved, but I believe the personal and professional factors weigh more heavily on these highly individual decisions than political factors.

    1. People know RBG “hung on”, because she was frankly incapable of doing the job towards the end. I haven’t heard anybody claim that of Scalia.

      1. I’ve not heard anything about her mental faculties other than right-wing wishful thinking.

        1. I don’t think it’s her mental faculties so much as her frailty.

          1. What kind of physical strength does one need to be a good Justice?

            1. Those law books are heavy!

            2. Come on.
              Intense work, physical or mental does require physical stamina.

              1. I don’t believe that frailty means you can’t think hard.

                1. “I don’t believe that frailty means you can’t think hard.”

                  Wait a few years and see what you think.

            3. The ability to stay awake at work?

              1. Not a regular occurrence, according to her fellow Justices.

                Also if you haven’t been drowsy at work you’re not living your best life.

      2. I mentioned Scalia only because Calebrisi had written “Justice Scalia died after almost 30 years on the high court trying to wait out President Barack Obama.” There is no evidence of which I’m aware (or which Calberisi cites) that Scalia was somehow “trying to wait out Obama” If ever there was a person who loved his job, it would appear to have been Scalia. I have no doubt he would still be on the Court today, if he could. He simply died when he died. Same with Ginsburg.

        1. Scalia died on a hunting trip — a physically active event.
          Big difference than Ginsburg, whom every knew was dying…

  17. Why only one 18-year term. If a justice gets to the end of 18 years, and the incumbent president is willing to reappoint him or her, the justice is willing to sign on for another 18 years, and the Senate is willing to confirm the nominations, why shouldn’t he or she be allowed to continue serving?

    If a justice isn’t given the chance for a second term, will he or she automatically be given retirement benefits, even if he or she hasn’t yet reached age 65 (or served 15 years, in the case of one who was appointed to fill an unexpired term)? If not, it seems unfair not even to give the justice the right to be reappointed upon expiration of the first term. This rule might be a real disincentive for judges on courts of appeal to accept promotions to the Supreme Court.

  18. This does not address the ultimate structural issue with the Supreme Court and judicial review which is – it is the only branch that does not have any effective oversight or check/balance. No wonder it is a zero sum game every time a justice retires or dies on the bench to get in the “right” person when you have a branch that is generates policy that cannot be reviewed or effectively overruled or overturned.

    1. The real structural issue is that the Court is chosen by federal office holders, and decides what the limits are on federal power. “No man should be the judge in his own case.”; It’s not that much better that a man gets to nominate and confirm the judge in his own case.

      Originally the Senators were pseudo-state officials, meant to be chosen by state legislatures. That was a check on the Senate, and indirectly on the Court, so it’s not surprising that they both went wonky not long after the 17th amendment.

      A structural fix would be to take judicial confirmation away from the Senate, and have it handled by a body composed of all the state Governors.

  19. Doesn’t the term limit proposal risk diluting the strength of stare decisis? Term limits would seem to suggest that maybe it’s best if the law gets turned over from time to time as well.

  20. Instead of the unworkable confinment of elected officials and stripping them of their pay (how many would be effected by that), why not impose a tie limit between nomination and the Senate holding hearings and voting (say sixty days). If the Senate hasn’t acted within that time limit, the nominee is automactically appointed.
    The Senate could still reject a nominee, but this would prevent the Senate majority from not even holding hearings and letting the public judge the pros and cons of the selected jurist.

  21. I’m not really in favor of the concept, though I’ll admit that a rational system could come up with such a thing. My problems are several:

    First, what problem is this solving? Judicial senescence, sure. But I think the system manages fairly well with this ever-present risk. Instead, the real issue seems to be the hope that this will reduce the stakes – and accompanying political earthquakes – of nominations. If you believe this, you are dreaming. Roe has allegedly been “one vote away” from being overturned for over 30 years. Mysteriously, it hangs on. If you’re pro-Roe you’re not going to be assuaged by knowing that Justice Barrett will only be able to vote against you for a mere 18 years.

    Do we want to regularize SCOTUS confirmation battles? Without regard to the current POTUS, I think I’d be just fine if some Presidents got 3 nominations, and others got zero, purely due to the fortunes of war. If we have nominations like clockwork, it seems destined to cement the increasing porousness of the electoral politics/judicial confirmation border. That fight may already be lost. But under the present life-tenured system, the norms could change back; they won’t under the proposed system.

    I am reluctant to interfere with the complex mechanics of how the members of the Court relate to each other. Calabresi sees clarity and wisdom from locking the Senate and President in a room together; why can’t he see it in locking the 9 Justices together for life? Understanding that you are in it, together, for the long haul can moderate one’s approach, or at least prod accommodation to others. But, if everyone is destined to become a short-timer, exiting justices may start lobbing bombshells, and early-tenured ones may decide to wait out those drawing near to the finish line. I cannot guarantee this, but I can guarantee that the dynamics would be different. We should not interfere with those dynamics without a very good understanding of them, and rationale for doing so.

    This can only be done by amendment. You can’t bind subsequent Congresses; indeed you can’t even bind *a* Congress in derogation of the constitutional provisions empowering the houses to make their own rules. And I agree with the comment above that forced senior status is easily a diminution of the powers of office likely to invite a searching and skeptical review by the Court.

    1. You hit the main problem – changing life to 18 years is not sufficient to “turn down the temperature” on nominations. The stakes are still too high.

      And you’re also right that in the current climate there is no such thing as a binding compromise, short of an amendment. There are way too many members of congress already threatening to blow up past agreements if there is the slightest advantage in doing so.

      1. You hit the main problem – changing life to 18 years is not sufficient to “turn down the temperature” on nominations. The stakes are still too high.

        The stakes are lower, both because the justice isn’t serving for life and because everyone knows there will be the opportunity in two years for another appointment. Under the current system, if you miss your window there may not be another.

  22. I’m OK with the premise, I hate the execution – especially the salary freeze part, which feels clunky and populist rather than practical. I would also add the idea that any Justice after his term may ride Circuit and would be eligible to be randomly selected to fill in on any case where a current Justice is ineligible to hear due to a conflict of interest. Finally, I would codify the 9-member limit if they’re doing this to help reduce other partisan methods to influence the Court.

    I’m also not thrilled with drawing straws as the method to determine this. I’d much rather it be determined either in order of when they were appointed or by age, whichever is more politically palatable. For example, if it’s a current Democratic-controlled Senate and Presidency, they would likely push for age so Justice Breyer will hit his term limit first (banking on Justice Thomas at least being replaced in a Republican-controlled Senate).

    If that were the case and the amendment were passed next year, it could be:

    2022 – Breyer
    2024 – Thomas
    2026 – Alito
    2030 – Sotomayor
    2032 – Roberts
    2034 – Kagan
    2036 – Kavanaugh
    2038 – Gorsuch

    1. “Finally, I would codify the 9-member limit if they’re doing this to help reduce other partisan methods to influence the Court.”

      This is actually included in Calabresi’s original proposal.

      1. The most appealing part of the proposal is sequestering Congress and the President until they get their act together. Plenty of applications beyond SC nominations. Budget, maybe?

        Go with full sequestered jury rules. Not just to put pressure on them, but also to save us from all their grandstanding and showboating.

        If that doesn’t work, move on to what they used to do with the College of Cardinals when they were dilatory in picking a pope.

  23. 18 years is still too long and it won’t remove the primary problem of judges who largely make things up to satisfy their political cravings.

    Ideally, ALL federal judicial terms (including SCOTUS) should be limited to 2 to 4 years, maximum. This would remove the constant fixation on the politics and reasoning of individual judges/justices.

    And each batch of incoming justices will not be fixated on perpetuating the erroneous decisions of the previous judges.

    1. Yeah, because what what would really make the practice of law a lot better would be a healthy dose of randomness in outcomes.

    2. I said it above and I’ll say it again. Why do all the people arguing for term limits seem to so carefully ignore the outcomes in the jurisdictions that have actually tried them?

      There’s no point is having separate states as “laboratories of democracy” if you can’t be bothered to look at the results of the experiments.

  24. Sweeten the deal by throwing in congressional term limits and I’d be on board. But we’ll never see congress passing that. Would need to be via the Constitutional Convention method.

  25. 18 years is WAYYYYY too long and it won’t remove the primary problem of judges who largely make things up to satisfy their political cravings. And the confirmation battles will still continue. No one is going to fall for the idea that our justices are so honorable that they will NEVER band together with other justices to make up political decisions in the guise of judgments.

    The only solution is to keep the term so SHORT that nobody knows what the other justices think.

    Ideally, ALL federal judicial terms (including SCOTUS) should be limited to 2 to 4 years, maximum. This would remove the constant fixation on the politics and reasoning of individual judges/justices.

    While we are at it, we should also remove the judicial discretion to NOT accept cases. They should be required to accept every appeal and be required to render judgment on the merits. This will prevent the endless strategic punting to change the law without scrutiny.

    And each batch of incoming justices will not be fixated on perpetuating the erroneous decisions of the previous judges.

    1. Also, to add, with a short 2 year judicial term, a celebrity cult will not develop. In fact, nobody will be able to remember WHO the justices are at any given time with them rotating out every 2 years.

      Nobody will care about the life experiences of individual justices. If a judge makes wrong decisions, the next judge to take that seat will likely not feel bound by such errors and will not allow perpetuation of unconstitutional judgments or allow fake edifices to be built as “precedents”

    2. “While we are at it, we should also remove the judicial discretion to NOT accept cases. They should be required to accept every appeal and be required to render judgment on the merits.”

      All 7000 cases? We’ll need to designate a special staircase in the SC building where they can use the traditional English teacher method. Also, instead of written opinions they could go to checkboxes: (a) RTFC, (b) FYTW, (c) penumbra and/or emanation, (d) coin flip, (d) none of the above.

  26. One does not need a constitutional amendment when we can just appoint some activists who will re-imagine the constitution however we like. Lets just elect Justices to 18 year terms, who will then re-interpret the constitution to allow elections of Justices. See how that works?

  27. The relevant constitutional language has always been understood to require life tenure, but there may be room to redefine the duties of the office. For instance, a statute could define the office of Supreme Court justice as 18 years serving as part of the Supreme Court, followed by continued judicial service riding circuit and filling in on the Supreme Court in cases of recusals or temporary vacancies.

    Absolutely not. I am sick of the power hungry in both parties trying to weasel around the need for constitutional amendments so they can have more power.

    If it’s a good idea, propose and amendment, and if most think it a good idea, The People shall approve it.

    All are concerned with the structure of government. Change to this is deliberately hard to stop demagogues and blowing passions of the moment from making fateful changes.

    1. “If it’s a good idea, propose and amendment, and if most think it a good idea, The People shall approve it.”

      Congress can’t even pass normal laws anymore. The idea of a successful Constitutional amendment at this point seems pretty fantastic.

  28. Wasn’t this the Calabresi who contended clingers should expand the federal judiciary when they had the chance a few years ago?

    Now, sensing that enlargement of the Supreme Court is approaching — by the liberal-libertarian mainstream that has been kicking his ass in the culture war since he was old enough to fashion a bigoted sentence — he suddenly switches gears?

    Stand aside and try to enjoy the ride, Prof. Calabresi. Your betters will take it from here.

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