The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.