An Argument Against Supreme Court Term-Limits

Would regular SCOTUS confirmations produce too much volatility in the case law? I am unconvinced.

There appears to be increasing support for adopting term limits on Supreme Court justices. My co-blogger Orin Kerr endorsed the issue some time ago, and it has been endorsed more recently by a range of folks, including Fix the Court and Stephen Calabresi. I have raised questions about the proposal, largely on the implementation side, but think it has some merit, particularly given its potential to help de-escalate judicial confirmation fights. My co-blogger Ilya gives the idea "two cheers."

Not everyone is convinced. In USA Today, the R Street Institute's Anthony Marcum makes the case against term limits.

Although well-intentioned, term limits have a problem. Not only are they unconstitutional, but they will have the exact opposite result proponents wish for. More, term limits will ensure that court vacancies are inextricably tied to every presidential race and has the potential to create abrupt ideological shifts on the highest court, only increasing the political scrutiny. In other words, term limits will not lower the temperature around nominations, they will leave the country scorched.

I agree that it would likely be unconstitutional to impose term limits on sitting justices, but I am not convinced it would be unconstitutional to redefine the office to which future justices are confirmed to only provide for 18 years of service on the Supreme Court, followed by continuing service on circuit courts thereafter.

I am more intrigued by Marcum's argument that term limits would actually increase the partisan rancor over the Court. He writes:

term limits would regularize the process, and in turn tie two Supreme Court seats to every presidential cycle. A single two-term president could pick 44% of the court. If two presidents of the same party served three or four consecutive terms, an overwhelming majority of the court would quickly be ideologically one-sided. In the span of only a few years, a court of eight Scalias could turn to eight Ginsburgs. Certainly, the chance for such a dramatic ideological shift in the highest court would only put a greater spotlight on it during presidential elections and judicial confirmations.

Here I think he overstates the case. It would take a minimum of 14 years to go from a Court of "eight Scalias" to "eight Ginsburgs," and would require sustained control of both the White House and Senate (as I doubt term limits would make the Senate as deferential as I would be to a President's SCOTUS nominations). So such swings would only come about were there equally dramatic swings in the country at large.

More broadly, looking backwards, term limits for Supreme Court justices would have produced a Court composition not all that different from what we've seen in recent years. Indeed, were term limits already in place, there would be a 5-4 split on the Court in favor of Republican appointees. So it is not clear to me why term limits would necessarily produce a greater degree of volatility in the law than we have now. And even if my surmise is wrong, it is not clear why this is more problematic than potentially insulating doctrine from all political influence for decades at a time, as is possible now.

The argument that term limits would help de-escalate Supreme Court confirmation fights is that it would reduce the consequence of each confirmation. Partisans would no longer fear that a justice could serve for 30 or more years, and all would be assured that winning the White House would lead to the opportunity to make two nominations, and that a two-term President's influence on the Supreme Court would mirror that which two-term Presidents tend to have on the lower courts. (On the other hand, this has not led to a de-escalation of lower court nomination fights—quite the contrary—so it's reasonable to be unconvinced on this point.)

Marcum concludes:

Term limits are popular because they promise what it cannot attain — a way to depoliticize the courts. Still, we should not be dissuaded from trying to lower the political temperature around the judiciary. But we should find a better way to achieve it.

Marcum makes some reasonable arguments against term limits, but I am not particularly convinced. Term limits are certainly no panacea for the judicial confirmation mess, but I am inclined to think they would be a positive step.