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.

 

Comments

[Brett Bellmore]

I'm inclined to think that judicial confirmations have gotten like this because the Supreme court has been transformed into a standing Constitutional Convention, only one freed of the requirement that its amendments be ratified.

Short of changing that, nothing is going to make the hearings less controversial. Term limits certainly wouldn't change that.

[Alpheus W Drinkwater]

Throughout US history, people have been making that argument about SCOTUS. That was basically Jefferson's complaint, particularly after Marbury. It was certainly leveled at the court after Dred Scott, and at other times. And yet the out-of-control confirmation wars have only started fairly recently, say since the 1980's. So I think there must be a different cause.

[Brett Bellmore]

The Democratic party just started getting dependent on the Supreme court imposing on the nation things, like legalizing abortion, (1973) that were politically toxic. Controlling the Court became a way to get wins that they didn't dare vote on; If the Court imposed it, the Court took the heat, so it didn't have consequences at the ballot box.

[Armchair Lawyer]

So, Dred Scott is applicable. But what's key here is the result of the Dred Scott decision. Congress and the States passed amendments to the US Constitution to change what the court said. Congress overruled the courts

The problem really came when Congress USED the courts to get national legislation "passed" that they couldn't (or wouldn't) pass on their own.

[David Nieporent]

So, Dred Scott is applicable. But what’s key here is the result of the Dred Scott decision. Congress and the States passed amendments to the US Constitution to change what the court said. Congress overruled the courts.

There may have been an intervening event of some significance somewhere along the way.

[dwb68]

As long as politicians appoint Justices and judges, and as long as those judges and Justices, rule based on their policy preferences as super legislators, the confirmation process will be a highly partisan cat fight. De-escalation is nothing more than an academic pipe dream.

I am not sure why people are that concerned about the confirmation hearings being politicized. So what if there is an epic battle and tough questions? The Federal government is creeping more and more into everyday life. Partisan battles over the Supreme Court are simply a consequence of the ever encroaching Federal government.

Term limits will do squat and I tend to also think that they will increase rather than decrease volatility. That is because, simply put, the more power the Supreme Court and The Federal Govt have, the more fiercely politicians will struggle over the levers.

[Martinned]

Partisan battles over the Supreme Court are simply a consequence of the ever encroaching Federal government.

I don't think that chain of argument quite works, at least not without one more step. Most Western democracies have administrative states like the US, but none of them have partisan confirmation fights quite like the US. The reason for that is that none of them have constitutional courts that drive policy quite as much as SCOTUS does. But I've never quite been able to figure out why not/how SCOTUS got to this place.

[dwb68]

I am not even sure that in a Parliamentary system like the UK people have individual rights like they do in the USA, or that the legislative body has limited powers. Nor is their the dual sovereignty structure like here. My view is that judges in such a system are more the equivalent of the administrative "judges" appointed inside the executive branch, and the judiciary is not really independent.

I would not even expect a battle in such a system.

[Brett Bellmore]

Most Western democracies have relatively new constitutions. They haven't had time for the kind of constitutional decay we see in the US to set in yet. It didn't happen overnight in the US, after all.

[jb]

This is true for a lot of countries, but it doesn't seem like Norway, Luxemborg, Belgium, etc. that have relatively long-lived Constitutions are running into similar problems.

I wonder if the UK's lack of a written Constitution is actually a strength in this regard--the high level structure of things hasn't changed in hundreds of years, but lots of tweaks along the way keep the system resilient to emergent bad patterns.

[dwb68]

If a constitution is not written down, does it even exist?

[rsteinmetz]

Norway, Luxembourg and Belgium all are relatively small countries with more homogeneous populations, several US states have more population that any or even all of them togeather. Belgium has only been independent since 1830. Luxembourg became more or less independent in 1839. Norway only became independent in 1905. Of course the traditions of all three go back much further.

[Rat on a train]

Belgium is less homogeneous than the others. They are a multinational country with tensions between the Flemish and Walloons. They had a crisis about a decade ago where they went 196 days with a caretaker government because the two regions couldn't agree. There are movements to divide the country either as a confederation or two states.

[Brett Bellmore]

I'd say turning the House of Lords into a powerless rubber stamp was more than a "tweak".

Norway is a constitutional monarchy, though its constitution IS roughly as old as ours. Luxembourg is also a constitutional monarchy, even if they call the king a "Grand Duke", and only dates back to our Civil war. This may have something to do with it in their cases.

But constitutional decay did take until the mid 20th century to set in in the US. It wasn't immediate.

[Stephen Lathrop]

jb, seems like the British system puts effective sovereignty in the Parliament. That delivers a political system where every election has potential to accomplish what the U.S. would need constitutional amendments to do. But in the British system, nobody thinks they are amending the constitution, because they incorporate that readily-available change as an abiding constitutional feature.

[Martinned]

I agree.

What about a supermajority requirement in the Senate? Germany, Switzerland, and Austria all have that, and there it means that each major political party gets to appoint a pre-agreed number of justices. (They also have term limits.) That's a way of really baking ideological balance into the system.

(Of course, this involves significantly reducing the power of the President in the system, consistent with my question last week of why the Senate Majority Leader doesn't simply tell the President who to nominate if they're of a different party.)

[LawTalkingGuy]

Or maybe the House should be involved in SCOTUS confirmations.

[Brett Bellmore]

I think what we really need to do is restore something of the pre-17th amendment system, where the Federal President nominated, but the confirmation vote was held by Senators who were, nominally at least, state appointees. I think it's significant that the real decay didn't set in until the 17th amendment was ratified, and the Senators who'd gained office under it had aged out.

It's true the Senators were being popularly elected even prior to the 17th amendment, but they always had to worry about the possibility of pissing off the state government enough that they'd reclaim the power to appoint. That threat went away after the 17th was ratified.

What I'd do, if I were rewriting the Constitution, would be to take the confirmation power away from the Senate, and hand it to a body consisting off all the state Governors. So that the states' interests would be represented again.

[Alpheus W Drinkwater]

That would certainly give the states more say in who served on the court, but it's hard to imagine that would decrease the partisan rancor.

[bernard11]

Worst idea of all.

[Krychek_2]

Whenever I hear a states rights argument made, my first question is why collectives should have more rights than individuals. It's just remarkable to me that conservatives, who never have a kind word for collectivism in any other context, suddenly think collectivism is a wonderful thing if we're talking about states rights, the electoral college, or the election of senators.

[Brett Bellmore]

The basic idea behind the Constitution was limiting the growth of power by setting the interests of one part of the government against the interests of another, and requiring cooperation across multiple branches to accomplish anything.

They say that no man should be the judge in his own case; Is it better that he should nominate or confirm the judge in his own case? But that's the situation when the constitutionality of federal actions is being reviewed.

I'd like to see somebody involved in selecting federal judges who doesn't personally benefit from the power of the federal government growing.

[bernard11]

Is it better that he should nominate or confirm the judge in his own case? But that’s the situation when the constitutionality of federal actions is being reviewed.

And what if the case involves the power of state government?

Aside from that, of course, enlarging the importance of states qua states in national affairs is just foolish. We have way too much of that now.

[Brett Bellmore]

If it involves the power of state government, and the federal constitution is involved, then you've got the nomination at the federal level, to moderate the problem. If it's in the state courts, I think maybe making the judiciary elected.

"Aside from that, of course, enlarging the importance of states qua states in national affairs is just foolish. We have way too much of that now."

No, we have way too little of it.

[bernard11]

So Wyoming voters, as a whole, and California voters, as a whole, should have equal say in who gets appointed to the Supreme Court, whether Senate passes a tax bill?

That's bullshit. It's not even borderline sane.

[Bob from Ohio]

"So Wyoming voters, as a whole, and California voters, as a whole, should have equal say in who gets appointed to the Supreme Court, whether Senate passes a tax bill? "

Its the basis for the Union. Its a federal union.

People in Wyoming are not going to let California completely control their lives without almost no say.

[Krychek_2]

Bob, other than that you like the results, why is it preferable for Wyoming to make decisions for California than for California to make decisions for Wyoming?

[Bob from Ohio]

"Wyoming to make decisions for California than for California to make decisions for Wyoming"

Its not making decisions for California. Wyoming is able to influence decisions that it would not if population ruled everything.

A partial check on large state tyranny.

[Krychek_2]

Yes it is making decisions for California. California wants single payer health care. Wyoming is blocking it.

[Rev. Arthur L. Kirkland]

You will be whimpering a different tune when Puerto Rico, Douglass Commonwealth, and perhaps Pacific Islands are admitted as states next year, clinger.

I will be enjoying a nice beer, toasting American progress.

#ThreeWeeks

#ThreeMonths

#TheReckoning

[Armchair Lawyer]

Not only is it sane, it's how the country was started. Delaware and Virginia had very different populations in 1790, yet were given the same number of senators in the Senate.

[Stephen Lathrop]

Armchair, among free white males in 1790, Delaware had about 10% of the population Virginia had. Counting everyone now, Wyoming has about 1.5% the population California has.

I have not done the math, but would bet money that state disparities in political influence are systematically higher now, across all the states, than they were at the time of the founding. It is worth noting that almost no one among the founders thought the disparities at that time were anything but troublesome.

Those disparities were not designed in as would-be good government features. They were designed in because small-state politicians enjoyed outsized influence bestowed by the Articles of Confederation, and could not be persuaded to ratify a new system that would make them give that up. That was Madison's assessment at the time.

People who try now to sell that bad bargain as a wise constitutional feature do not know their history, or argue cynically.

[Krychek_2]

Yes, I understand that was the theory, and you can see for yourself how well it's worked out. That doesn't answer the question, though, of why conservatives, who never have a kind word to say about collectivism in any other context suddenly decide it's just wonderful if we're talking about state's rights.

I almost never agree with Ayn Rand, but on this issue she was right: "States don't have rights. Only individuals have rights. States have responsibilities and the necessary authority to carry them out."

[Bob from Ohio]

You lose one presidential election and you want to through out our whole system.

[Krychek_2]

Well, two presidential elections; don't forget 2000. But there's also the detail that Democrats would have controlled both houses of congress for most of the last twenty years if not for unequal senate representation and gerrymandered seats. We are approaching near permanent minority rule.

[Bob from Ohio]

"unequal senate representation"

Once again I will shout into the void.

Dems had 60 sets 12 years ago. GOP never more than 56 since the 1920s

The parties split equally but the 10 smallest states and 10 largest states.

"gerrymandered seats"

Dems gerrymander too. Look at Massachusets and compare GOP votes with number of reps.

[Krychek_2]

But the “10 largest states” and the “10 smallest states” is meaningless because it takes the 18 smallest states together to equal California in population.

And gerrymandering is wrong no matter which party does it. Nationwide, though, Republicans benefit more from it than Democrats do.

[Rev. Arthur L. Kirkland]

#106Senators

#NoFilibuster

#13Justices

[Rat on a train]

Massachusetts has nothing on Maryland. MD3 is my favorite.

[Artifex]

why conservatives, who never have a kind word to say about collectivism in any other context suddenly decide it’s just wonderful if we’re talking about state’s rights.

Primarily because your framing is fundamentally silly and dishonest. The choice is not between states having rights or individuals having rights, only a moron would believe that. In this case the choice is a uniform federal enforced collectivism or fifty different imposed collectivisms. With fifty choices, at least one may be a bit less onerous. As a libertarian I would like even more choices, go beyond states right and drop it to localities rights. Maybe then by chance someone would do things right and I could move there.

The other point is that the difference between progressives such as yourself and the libertarian viewpoint isn't collectivism. Most humans live in collective groups of some form or other. I prefer lots of choices and the choices other folks make are fine with me. It you want to live in an Amish community, a Black Muslim community, a fundamentalist LDS community or a communist community, it's all good. Just leave me my choices. The problem is the progressive viewpoint is one of narcissistic self righteousness with a fundamental need to control others. If there is even one baker that won't bake a cake the way you want, your boot is in their face. That is the driving divide not collectivism.

[Squirrelloid]

'States rights' is poor rhetorical framing (they aren't really rights), but the whole idea behind it is that states didn't relinquish all their powers or sovereignty when they joined the US. They relinquished only those specific powers written into Article 1 of the constitution (and construed narrowly - modern commerce clause jurisprudence is not what the states agreed to).

And of course, there's the practical reason to support greater state power - experimentation, adaptation to local conditions and preferences, citizens voting with their feet. And it would decrease the partisan rancor, because we'd have less one-size-fits-all rules from the feds and less potential for abuse of power that targets out-of-power partisans (which both sides have done).

The reason our politics is so toxic is because the federal government is too powerful, too capable of bringing that power to bear on whomever displeases the government, and thus losing control of the reigns of power is perceived as an existential crisis.

The kinds of attitudes routinely expressed by the likes of Kirkland are exactly the problem - that winning control of government means punishing your political enemies.

[Krayt]

Republicans wanted it for years, and Democrats didn't. Because Republicans played the long game, and slowly gained an advantage in this crypto legislature, the sides have flopped. As usual.

There is no apriori advantage to term limits. When finding out if a law is unconstitutional, normally you want long and slow debate.

Finding new unenumerated rights is in alignment with founding principles. Finding new powers for government over the economy, expanding its control into unimagined areas, sans amendment, is not.

Term limits exacerbates the treatment of the Supreme Court as that secondary legislature, to be fought over. It seems to be rising in importance, almost as much as for the presidency (with veto) itself.

So the whole issue is royally screwed to begin with. Hint: the solution is not to let politicians have as free a reign as possible to intrude on your freedoms, be it in the bedroom or boardroom.

Hence it isn't a legislature. Hence term limits are irrelevant.

Now continue fighting by slinging irrelevant memes from your respective echo chambers.

[Dilan Esper]

The reality is that winning a bunch of elections in a row always gets you the Supreme Court, even with life tenure. For instance, the Democrats got all nine members when they won 5 in a row in the 1930's and 1940's.

[Bob from Ohio]

I imagine the GOP did likewise between 1860-1884.

[DaivdBehar]

The argument is the opposite. The term limit will politicize the Court by making it more reflective of voter preference via elections to the Presidency and to the Senate.

[Goju]

As an experiment, could we just start with term limits for Congress and see how that goes?

[LawTalkingGuy]

We already know how that goes based on state legislatures: lobbyists end up dominating the political process to an even greater degree because the legislators don't stick around the capital long enough to form an independent knowledge and power base where they don't need to rely as much on them.

[Kevin Smith]

And on top of that, the termed-out politicians tend to become lobbyists, making the incoming junior legislators even more deferential to them

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The only way to depoliticize the Supreme Court is reduce the size of the federal government. The more government meddles in daily life, the more people will fight over control of the government, and the more they fight, the more the Supreme Court has to step in.

[cl]

If there are term limits of 18 years then most justices will have a career after their term. Many congressmen/senators go into some sort of lobbying after their political career I would assume the same would be true for retired justices.

Any thoughts about how planning for a future career will impact their decisions while on the court?

[Goat]

SCOTUS justices who want to keep working after retirement tend to continue to sit by designation on the circuit courts. Justice Souter, for example, does this.

Additionally, the term limit reduces pressure to nominate people in their 40s. Over time you would expect more nominations of older judges who have established their ideological bona fides through years of experience. More Merrick Garlands and fewer Amy Coney Barretts. Older justices = less concern about finding work post-SCOTUS.

[cl]

I agree, in the equilibrium fewer young nominees. I don't know if that's good, bad or neither.

I'm not in the law profession at all, I didn't know that retired judges sat on lower or specialized courts.

[nystateofmind]

You can prevent career planning by keeping it a lifetime appointment but state that after you serve your 18 years on Supreme Court you will then be assigned to the Court of Appeals of your choosing. Sort of like how Judges rotate off of FISA Court and other specialized assignments.

[BadLib]

Currently those that agree to be nominated to the Supreme Court know that it's considered a lifetime gig and retiring early and going for the "big bucks" would be considered unseemly.

However, if it's viewed as an 18 year gig with great influence followed by a demotion (or removal from the court entirely if this is done via a constitutional amendment) that would not be the case. Really, what 60 year old wants to go back to the inferior courts and have their ex-colleagues overturning their rulings?

Thus many nominees and Justices would always be looking to "what follows this?" and that could color their opinions or even motivate them to accept a nomination largely for "what follows this?". They would be getting both the thrill of nearly unbridled power followed by "big bucks" later.

As well, once it becomes culturally acceptable for retirees from the Supreme Court to make the "big bucks" in private practice, Justices might vacate the bench years before their term was up to suck up the "big bucks" in a cushy big law firm.

Perhaps one way to solve this would be to demote a Justice to the inferior courts after 18 years while retaining full "Justice salary". If they leave the bench voluntarily (vs. being impeached), for 20 years they would be subject to a 100% fine (errr... "tax") on all earned income (including employee stock option gains or similar - no 83(b) elections for these folks!) that exceeds what they would have received if they had stayed on the bench.

[loki13]

This is, essentially, an INS v. Chadha problem. It's one of accountability.

As the federal government has become increasingly dysfunctional, the Supreme Court has become increasingly political; people look to the Supreme Court to "fix" political problems (to stop the excesses of "the other side" or to enact their preferred policy and cultural preferences than cannot or will not be enacted through the regular political process).

But as the Supreme Court (and the federal judiciary) is increasingly partisan and political, it is certainly not accountable to the People. How do you "vote" for the judiciary? You can't just vote for the President, certainly not any more. Even assuming the popular vote matters (HA!), the President's appointment might not even get voted on if the Senate is another party. So you end up with a situation where the electorate feels relatively helpless; for example, we have a situation today where:
In the prior election, the GOP lost the popular vote for the Presidency.
In the prior election, the GOP lost the popular vote for the Senate (and overwhelmingly, by 16%).

...and yet, it's a fait accompli that the GOP can ram more judicial nominations down.

No accountability. That's a complete loss of legitimacy.

You can't both increase the importance of the judiciary, make it more partisan, and remove any electoral accountability.

[Armchair Lawyer]

Is it fair to count the "popular vote" for the Senate when there are states that don't even give a choice for the opposite party in the Senate election?

[Bob from Ohio]

No its a total BS argument. Of course Loki likes it.

California, the largest state, had two Dems running.

[donojack]

I didn't even know that anyone added that up.

[Josh R]

No, it is not fair. But even accounting for it, the Democrats need to win the Senate popular vote by at least 6%-points to win the Senate.

[Bob from Ohio]

No they do not. They just need to win a plurarity in enough states. We don't have one senate election, we have 33 every 2 years.

Dems had 60 senators only 12 years ago. The parties split the 10 largest and 10 smallest states equally now.

[Josh R]

Probabilistically, the Democrats need to win the Senate popular vote by at least 6%-points. That is over 3 election cycles (covering all 100 seats), if the Democrats win the popular vote by 6%-points, they have a 50% chance of controlling the Senate.

[Krychek_2]

Not only that but if you rank the states by population, the bottom 18 don’t add up to California.

[Armchair Lawyer]

You're going to need to show your work here.

[Josh R]

Per the link above, the work is Nate Silver's, not mine and he is reputable. That being said, if you assign the entire population of a state to the Democrats if they hold both seats, and half the population if they hold one seat, the 47 Democratic Senators (counting Sanders and King as Democrats) represent 51.9% of the population (I can't attach my spreadsheet).

[Armchair Lawyer]

OK. The US population is 327 million for the Senate-containing seats.

You're arguing over roughly 2% of the population.

Flip one Senate seat in Pennsylvania. Entirely reasonable. There's the 2% of the population there. Or flip one Senate seat in Ohio. GOP has won Ohio in many of the past elections. There's another 2%. That's basically the difference of a popular politician "skewing" the entire system (See the Ohio Senate vote in 2016 and 2018). Which doesn't make a lot of sense for the hypothesis, and would average out over time.

If you take a look at the top 10 states by population, they're pretty well balanced between "Red" states and "Blue" states. If you take a look at the bottom 10 states by population, they're also pretty well balanced by population

FYI:
Red states: WY, AK, ND, SD, MT
Blue States VT, DE, RI, ME, NH

[Josh R]

If you flip one seat in PA, you end up with 48 Ds representing 53.8% of the people. If you instead flip one seat in OH, you have 48 Ds representing 53.6% of the people. Flip them both, you have 49Ds representing 55.6% of the people.

Looking at only the top 10 states, there are 10 Ds representing 52.8% of the people across those states. For the bottom 10, there are 10 Ds that represent 55.6% of the people across those states.

[Josh R]

Or perhaps you wanted one seat in PA and OH to be flipped from blue to red? Flip one of them, you have 46 Ds representing 49.9% or 50.0% of the population. Flip them both and 45 Ds represent 48.1% of the population.

[raspberrydinners]

"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."

This is a pretty stupid argument honestly. That's how it is now and I don't see that changing anytime soon. Having 18 year terms where each president gets to choose two ensures it diminishes the political fighting about it. What are you more concerned about- a normal election where the next president will choose 2 scotus judges or an election where the next president can choose 2-3 justices for the next 3 decades?

C'mon- the argument is weak as a wet paper bag.

[ducksalad]

"What are you more concerned about- a normal election where the next president will choose 2 scotus judges or an election where the next president can choose 2-3 justices for the next 3 decades?"

You're comparing apples and oranges. Two definite appointments vs. an unknown number of appointments from 0 to 9. And on the average, 18 year terms give you *more* openings than life terms, the direct comparison is 2 per presidential election versus some number less than 2.

[Union of Concerned Socks]

100% misdirection. The branch of government that's broken isn't the judiciary.

[ReaderY]

There is a much surer way to depoliticize the court.

The court should focus on issues of agreement between the two sides. It should generally leave to the political branches areas on which the court remains sharply divided over a long period of time.

This means both that liberals should concede that leading-edge social issues from abortion to transgender rights should not be read into the constitution and be the court’s focus, and conservtives should concede that things like the New Deal and a big federal governemnt are not going to go away, government (when controlled by liberals) should have some flexibility to address past and present racial discrimination, etc.

Both sides should stand down, stop using the court as an instrument of politics by other means, and cede more say to the political branches on these issues. The court should stick to issues with at least one of clear anchors in the constitutional text and broad social consensus.

That’s how to avoid a deadlock and/or endless flip-flopping. At the present, the court is locked in a war that can only end in its destruction as a meaningful check on the political branches. The business of courts is war. There is too much war. It needs to get out of the intellectual warfare business and let the legislative branches make peace. Peace requires making compromises that do not pretend to be based on a consistent articulation of a set of principals or a consistent interpretation of a text. Peace, in short, often requires the kind people who often aren’t regarded as the most intellectually sharp, who are willing to accept some fuzzy edges.

We need to stop have the warfare people running things with the court and its adversarial traditions setting the intellectual mindset, and bring in some people amenable to peace.

[loki13]

I completely agree, but I don't think that there is any way to get from here to there.

The truly sad thing is that the vast and overwhelming majority of cases have little to no concrete political valence; even the ones that get winnowed down and are heard by the Supreme Court.

It's a truism that, even considering the "hard cases" SCOTUS decides, there are more 9-0 cases than 5-4 cases on a yearly basis. Once you remove the cases that have little-to-know clear partisan impact, or those that do but aren't cultural touchpoints (such as the various AEDPA cases, or cases monkeying around with death penalty standards or other crimpro issues), you are usually left with a bare minimum of, what, between 2 and 6 cases a year that the average person truly cares about in terms of partisan valence? And I'm being generous there, both in terms of number of cases and in terms of what the average person knows about the cases before SCOTUS.

...and yet the cases, the legal standards, do affect us. It's like the whole annoying golf saying, "Drive for show, putt for dough." We put the justices through the ringer for the ACA, or Roe, or LGBTQ rights, and yet the lasting impact will be on issues like class action, or standing, or Article I power, or free speech, or patent cases, or criminal procedure.

And I mean ... the next time they have a tech savvy or criminal defense bar attorney up? Ha. Like that will happen.

[Commenter_XY]

I'm not so sure that is the case = "...I don’t think that there is any way to get from here to there."

Meaning, the problem here is the party politics, and the outsized influence of the Federal government in our daily lives. Reduce both, and there is a way to get from here to there.

My solution for the party politics is admittedly radical (I cheerfully admit this): I would repeal the 17th amendment, and return the appointment of Senators to their respective state legislatures. That would dilute the influence of political parties, and increase the influence of states. I am good with the CA legislature picking their Senators. Why not? The CA state legislator is a heck of a lot closer to the people of CA than a national party functionary.

Regarding the outsized influence of the Federal government, why not attrit down the non-military federal workforce? Technology can replace a lot. I am not advocating for immediate wholesale workforce reductions, but why not let the workforce attrit over time, and replace the people who leave with better technological solutions. We do this routinely in private industry.

Reader Y made some great points in her post, and in particular, this one: At the present, the court is locked in a war that can only end in its destruction as a meaningful check on the political branches. The business of courts is war. There is too much war. It needs to get out of the intellectual warfare business and let the legislative branches make peace. Peace requires making compromises that do not pretend to be based on a consistent articulation of a set of principals or a consistent interpretation of a text. Peace, in short, often requires the kind people who often aren’t regarded as the most intellectually sharp, who are willing to accept some fuzzy edges.

[loki13]

That's BS. Repeal the 17th Amendment? Reduce the size of federal government? Sure, in a libertarian fantasy-land, where we believe the states-qua-states have meaning for most voters (as opposed to the special interests that largely dominate state legislatures unseen), and we want to ram through dramatically unpopular things just because.

The reason it won't work is pretty simple. Not hard at all. Two parts.

1. Because anyone can bring litigation. Someone wants an abortion. Someone refuses to recognize a SSM. Etc. Parties don't determine cases- litigants do. So even if the parties stand down (HA!), the litigants won't.

2. Because the system itself is broken. It's not exactly cutting-edge political science to note that every country that tried to adopt our system of government has failed in dramatic fashion. Because the system we have (first past-the-post, power split between a bicameral legislature and a strong executive) doesn't work with strong party politics.

It's worked for so long because, for the most part in our history, we have had weak partisan affiliation combined with strong civic norms. It doesn't mean that what we have (increased partisan sorting, "winner takes all" with attempts to get unified control of the legislature and executive and deprive the other side of same) will necessarily continue, but it doesn't look good, either.

[Commenter_XY]

loki...I did say, "admittedly radical" 🙂

[bernard11]

we have had weak partisan affiliation

I think this is important. I can remember when there were conservative Democrats, and liberal Republicans - when there was talk of four actual parties, a Congressional and Presidential version of each nominal major party.

As the parties have become intensely associated with a set of political views, that has changed. It is now the case that voters are much more inclined to vote for the Senate or House based on political affiliation, rather than on much related to the individual candidate.

Money may enter into this as well. To get elected you have to raise money - lots of it - and I suspect that donors are more partisan in general than non-donors. So you have to run as a strong partisan.

One thing that might help is reducing the power of the legislative leadership. If a vote for a Republican senatorial candidate is essentially a vote for McConnell to run the Senate, then it's going to be hard for a moderate Republican to attract much support from weakly Democratic voters, and vice versa of course.

Another is to have more actual votes in Congress. Not filibusters or procedural thises and thats, but actual votes, for or against, bills and nominations. That creates a public record, for one thing, and it means that a session of Congress doesn't boil down to one or two major issues.

[Commenter_XY]

Agree with this It is now the case that voters are much more inclined to vote for the Senate or House based on political affiliation, rather than on much related to the individual candidate and with this as well To get elected you have to raise money – lots of it – and I suspect that donors are more partisan in general than non-donors.

Why stop at diluting the power of legislative leadership? Why not attempt to dilute the power of the major political parties that are driving the conflict?

Interesting point about the congressional rules.

[bernard11]

I don't think you can directly dilute the power of the parties. Reducing the importance of money would help, as would reducing that of the leadership.

Then you foster independence in the individual legislators.

[donojack]

Another is to have more actual votes in Congress. Not filibusters or procedural thises and thats, but actual votes, for or against, bills and nominations. That creates a public record, for one thing, and it means that a session of Congress doesn’t boil down to one or two major issues.

Why do you think this is so? It isn't the fault of one side or the other. And why would the legislative branch want to cede wide swaths of power to the executive? I don't see why more intense partisanship would foster this. I really don't understand it.

[bernard11]

It's not clear to me what you are asking.

I'm not suggesting that the legislature cede authority to the executive. I'm suggesting that with more votes there is more room for a legislator to establish an individual record, rather than be seen purely as a party-line voter.

I also think that would be good for our democracy, as it would make the actions of legislators more transparent to the voters..

As I've said before, the fundamental job of a Senator or representative is to vote on legislation. They should do it.

[Brett Bellmore]

Agreed. I say, roll call votes on EVERYTHING. Except leadership elections, which should be secret ballot.

[donojack]

I am confused about the legislatures' inaction in general and the willingness to cede their powers. It must be that politicians have discovered that having a record is detrimental to their longevity.

[Sarcastr0]

It's that politicians now worry primarily about their longevity. If that's your primary concern, risk aversion becomes the obvious play.

The current crop of legislators are there in order to be there, not in order to do things.

IMO it's because parties have made it so thankless and centralized their power so much. 30 hours a week of phone-banking as a freshman! No wonder these are who you get.

[Bob from Ohio]

" the court is locked in a war that can only end in its destruction as a meaningful check on the political branches. "

Good.

Sooner our black robe rulers get defanged, the better for the country.

The Supreme Court helped start a Civil War [Dred Scott], enshrined Jim Crow [Plessy and others] and completely distorted our politics since Roe v. Wade.

To paraphrase Lord Ashburton: "The influence of the Court has increased, is increasing, and ought to be diminished."

[????]

What I'd like to see is keeping the lifetime appointments, but simply having a justice appointed every 2 years. The court wouldn't have a fixed number of members.

[Goat]

This will lead to ever-younger appointees and ghoulish demands that justices remain on the bench until death. Look no further than Ginsburg, who stuck around so she could be replaced by a HRC, and then got stuck hoping should could outlast Trump.

Better to let the stakes be clear -- each president gets two appointments per term. One on taking office and one after the midterms. To the extent SCOTUS matters to voters, their votes will have clearly a traceable impact on who is appointed.

[Krychek_2]

Having read the usual comments about the court being a super legislature and a standing constitutional convention, a couple of points.

First, when someone asks the courts a constitutional question, their job is to answer it. Disagree with their answers all you like but don't fault them for doing their job and answering the questions. It's not like the Obergefell court woke up one morning and decided to give the country gay marriage just because they felt like it; that case got there because the court was asked to decide it. And once you've been asked, even declining to answer the question is itself an answer.

Second, as has already been pointed out, a big part of the reason the courts are asked so many of these questions is that somebody actually thought it would be a good idea to constitutionalize gridlock through what is euphemistically referred to as checks and balances, along with anti-democratic institutions, and a damn near impossible to get through amendment process. The values of the Constitution are, in part, no longer the values of most Americans, but we can't move on because of the unwieldy process that we have.

The originalist solution is that the majority should just suck it up and take it. The majority has a different idea. As would the originalists if they were in the majority but couldn't get their way because under our system, minority rules.

[donojack]

The values of the Constitution are, in part, no longer the values of most Americans, but we can’t move on because of the unwieldy process that we have.

You seem to assume that the courts are in step with majority opinion. Many if not most of the consequential social decisions of the Supreme Court could have been achieved by statute. In 1954 Congress could have outlawed school segregation or all segregation for that matter with legislation pursuant to the fourteenth amendment. No need for a new amendment. But could it have been done in 1954? I doubt it even if you ignore the power of the Dixiecrats with the filibuster.

Progressives are pushing the line that the system stands in the way of popular social change. There wasn't a national consensus for desegregation in 1954 or legalized abortion in 1973. Gay marriage is maybe a closer call but it probably would have chugged along at the state level before getting national approval if ever.

[ReaderY]

There isn’t a national consensus on abortion today. This appointment underscores that. Look around you. Perhaps a third of the country, enough to control one of the country’s two political parties, has been willing to swallow a President whose behavior flouts their values on hosts of other issues largely just to be able to get Supreme Court nominees willing to rein in or overturn Roe. That’s an indicator that Roe never achieved social consensus, and hasn’t achieved it today.

[Commenter_XY]

That’s an indicator that Roe never achieved social consensus, and hasn’t achieved it today.

You are so right about that. All the more reason to toss this back to the states and their respective legislatures.

[Krychek_2]

Whether abortion has achieved social consensus depends on how much consensus is required. A majority agrees with Roe's bottom line that a flat ban is unconstitutional. You're right that there isn't an overwhelming social consensus.

[Josh R]

Or to Congress.

[bernard11]

In 1954 Congress could have outlawed school segregation or all segregation for that matter with legislation pursuant to the fourteenth amendment. No need for a new amendment. But could it have been done in 1954? I doubt it even if you ignore the power of the Dixiecrats with the filibuster.

True, but isn't the point that when government infringes on rights one shouldn't have to wait around for decades for Congress to act? That school segregation laws were abhorrent?

[donojack]

I was just responding to Krychek's theory that the system thwarts the popular will and that the courts tend to track it. The Supreme Court is often ahead of, and sometimes contrary to, popular opinion. Whether that's a good thing or not depends but I don't think Krychek will necessarily get what he wants if all matters are subject to a referendum.

[Brett Bellmore]

"and a damn near impossible to get through amendment process."

There's nothing impossible about it, the Constitution was last amended in 1992.

What's going on here isn't that the states are no longer willing to ratify amendments. It's that Congress has stopped originating them. The last time they sent an amendment out to the states was 1978.

And, why would they bother sending amendments to the states, if the Supreme court will give them any changes they want?

[loki13]

"There’s nothing impossible about it, the Constitution was last amended in 1992."

That's a wee bit misleading (you know that, right)?

The 27th Amendment, famously, was the one submitted in 1789 (same time as the BoR), and ratified in 1992.

Prior to that, the last NEW amendment was ratified in 1971. Which was 50 years ago.

[Armchair Lawyer]

And so?

If the Constitution doesn't need to be amended, why worry about it?

[Brett Bellmore]

No, I don't think it's misleading: It indicates that the blockage isn't on the part of the states. If you provide the states with a popular amendment, they're perfectly capable of ratifying it. The ratification process is still functional, or was in the 1990's.

The obstacle to amendment is Congress: They stopped originating amendments back in the 70's. Haven't sent an amendment to the states in 42 years. The question is, why?

I think the answer is two fold:

1) Our federal political class have become a self-perpetuating clique, with views that are distinct from the general population. So, what Congress wants in the way of changes to the Constitution, the states wouldn't willingly ratify, (ERA, DC voting rights amendment.) and what the states would willingly ratify, (Term limits, balanced budget amendments.) Congress isn't willing to originate.

2) With the Supreme court willing to re-write the Constitution for them, Congress doesn't need amendments to get their way. They want a new power, or a new constitutional mandate? They just exercise it, and the Court rationalizes that it's already constitutional. Conveniently, this provides the states no opportunity to refuse to ratify.

I think in the end, we need a constitutional convention, to bypass Congress.

[bernard11]

Haven’t sent an amendment to the states in 42 years. The question is, why?

Yet some have been proposed. The Balanced Budget Amendment pops up every time Republicans lose power, and we had the flag-burning business for a while.

Wikipedia lists 14 proposed amendments in the 21st century alone.

The problem isn't the lack of proposals. It's the lack of consensus on the need.

[Brett Bellmore]

They propose them to satisfy voters, but make sure they never reach the state's. In 95 they brought multiple versions of both amendments to floor votes, so that everyone who needed to could vote for one without the risk of any one version getting enough votes.

[Armchair Lawyer]

Indeed. The closest it came was the 1995 Balanced Budget Amendment in the Senate. It passed the House and came with one Senator of passing in the House. The amendment failed in the Senate 66-44...

https://www.latimes.com/archives/la-xpm-1995-03-03-mn-38285-story.html

[Armchair Lawyer]

"The values of the Constitution are, in part, no longer the values of most Americans"

Which values of the Constitution aren't the values of most Americans? Free Speech? Freedom of Religion? The banning of slavery?

Just curious. Please let me know.

[Krychek_2]

Anti-democratic institutions like the electoral college. The idea that any gun regulations run afoul of the Second Amendment. There are others but those will do for a start.

[Armchair Lawyer]

If you're just going to mischaracterize positions, why bother responding?

[Krychek_2]

What did I mischaracterize?

[Armchair Lawyer]

" The idea that any gun regulations run afoul of the Second Amendment."

[Krychek_2]

And you think there aren't people who believe that?

[Goat]

The best example is the Constitutional paradigm of federalism. Most Americans today view themselves as Americans first, but the Constitution still has the vestigial limbs of post-revolution federalism, when Americans were Virginians or Pennsylvanians or what have you first.

Thus, we have an electoral college despite the substantial majority of Americans supporting a popular vote deciding presidential elections. When the Senate was created the most populous state had 4-5 times as many people as the least populous. Today that difference is more than 60 times. Yet Wyoming gets as many senators as California.

This structure has the natural effect of defeating the popular will. Policies that enjoy popular support are not enacted, while unpopular policies routinely are. Yet no governing coalition has to take responsibility for its failures, because it can always plausibly point to the obstruction of its opposition, which invariably controls one of the million veto points in our system.

[Krychek_2]

Thank you for giving a far more thorough answer than I did.

[Alpheus W Drinkwater]

An age limit for service in any of the three branches of government makes more sense to me than term limits. I would prefer not to have Presidents, cabinet members, Congressman, or Justices who are over 70 or 75, somewhere in there. Maybe even younger. They should go into retirement like everyone else.

[DioG]

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, ...

This would appear to demonstrate that the Offices of a supreme court judge and a judge of an inferior court are separate.

From Congress's Constitution Annotated:

Article III, Section provides that federal judges hold their offices "during good behavior." This standard, borrowed from English law, ensures that federal judges hold their seats for life, rather than set terms or at the will of a superior. ...

The bit about English law should empower originalists. It shouldn't be possible to provide a set term nor transfer a judge from his/her office in the supreme court to an inferior court.

[rsteinmetz]

We don't have term limits for congress, even though there are elections every so often.

Dianne Feinstein for example is 87 years old and has been in the Senate since 1992. She was in office when Ruth Ginsburg was confirmed to the Senate.

[Jerry B.]

“...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’d be interested in seeing the rationale behind this, as Justices “...shall hold their Offices during good Behavior...”

[Noscitur a sociis]

The conceit is that the "office" of Supreme Court justice would consist of hearing Supreme Court cases for 18 years, followed by sitting on a circuit court for the rest of your career.

Doesn't seem persuasive to me, but that's the argument.

[Bob from Ohio]

Yeah, I don't think you can do it by statute. So long as the life tenure justices sit [Amy is 48 so it might be 40 years] you have two classes of justices.

Not to mention the justices will interpret their own tenure.

[Josh R]

Jack Balkin argues that after 18 years, a justice moves from the status of junior justice to senior justice, all justices hear cases where the Court has original jurisdictional, and only junior justices hear cases with appellate jurisdiction. Perhaps being able to hear some cases before the Court suffices that a senior justice is still a Supreme Court justice?

[Kevin Smith]

An 18 year term limit would likely need to be combined with a provision only allowing a president to have 2 justices confirmed per term. Otherwise we would likely see the Merrick Garland situation happening more often, where a hostile senate holds a seat open to allow an incoming president to make the nomination instead (which, if the senate control holds, would allow the incoming president to appoint 5 justices in 2 terms, assuming the president gets re-elected)

Of course the 2-appointment limit could cause problems in the event of unexpected vacancies such as by death or unplanned retirement (which could in turn result in more younger justices being appointed, with he expectation that they will have less difficulty in serving out their 18 year terms)

[Josh R]

Balkin argues that vacancies occurring prior to 18 years are not filled. Instead the most junior senior justice once again becomes a junior justice.

For example, if Kagan dies today, Kennedy is one again one of the nine junior justices. At the next regular 2-year interval, Kennedy moves from being a junior to a senior justice. The effect would be to extend Thomas' tenure as a junior justice from 18 to 20 years.

[Rossami]

Have term limits depoliticized anything anywhere? States are the "laboratories of democracy" and lots of states have tried term limits for various elected officials. Can any term limit advocate point to any long-term, statistically significant benefits from term limits?

Having lived in a state that tried them, I can't. The idea is intuitively appealing but I can see no evidence that they work in practice. Until someone can show that they worked somewhere, why should we even think about extending the model to a new context?

[Noscitur a sociis]

My suggestion:

Circuit judges collectively nominate and elect nine circuit judges to staggered terms of (let's say) 9 years. Judges can only serve once. The Chief Justice is the longest serving justice.

(Let's stipulate that this would require an amendment, although with the possible exception of the Chief Justice part I'm not 100% sure it would.)

[ReaderY]

Why would it take an amendment? The President could simply always follow the recommendations of the sitting circuit judges on which one of them to promote to the Supreme Court whenever there’s a vacancy. and always pick the longest-serving Associate justice when a chief justice retires.

And the Senate could always agree.

Will they do that? Not likely without a constitutional amendment.

But they could.

[Bob from Ohio]

Maybe we should increase the politics, not seek to do the near impossible and reduce politics from a political system.

Elect federal judges. Then the people can directly get the Constitution they want.

There is zero evidence that the quality of elected state judges is worse than appointed or hybrid [appointed/retention election] state judges.

[Brett Bellmore]

I have, anecdotally, noticed that elected state courts seem less prone to throwing out ballot initiatives the state legislature doesn't like, than appointed state courts. But that's just a casual impression.

[Bob from Ohio]

We ought to have a federal initiative procedure for laws too.

[Rossami]

Having lived in states that appoint judges and in states that elect them, my experience is that appointed judges are generally less political and more dedicated to the job. At the tactical level, elected judges are more likely to pander to the jury. Again, just my anecdotal experience.

[Kevin Smith]

I think the only way to reduce the politicization of the court, which essentially preserving the current system of nominating and confirming justices, is to require a 2/3 majority in the Senate to confirm. This would mean any nominee would need bipartisan support

This would of course need to be done via constitutional amendment, which is unlikely to happen as neither side actually wants to depoliticize the court, they just want to reduce the other side's political influence and increase their own

[WillDD]

I'm inclined to believe that a carousel of Justices can only lead to a unwarranted dilution of stare decisis. In addition, Justices who have a life-time appointment might not feel pressed to take up a specific issue, while Justices with a limited time to make their mark on (and get on the right side of) history might be more eager to do so. A lot of state Supreme Courts seem to be composed of lawyers who either ran to change in order to change the law -- and sometimes that just deals with mundane issues of, say, personal injury -- or were selected by politicians (sometimes working through allegedly neutral committees) to do so.

[Jimmy the Dane]

Term limits are just a band-aid for what is a gaping wound.

The Supreme Court was never intended to be a Constitutional Review Court. In fact, that type of mechanism was explicitly rejected by the Founding Fathers. And even in the early days of the Republic judicial review was a small segment of cases heard by the Court which largely only affected the federal government.

Now the court effectively sets public policy for local government and that is a larger issue. If we want to operate with such a "check" in our Constitutional form of government then it needs to be crafted properly. That is going to require more then just term limits

[MatthewSlyfield]

Here's my idea for de-politicizing the Supreme Court (and lower courts). And yes I realize that this would likely require constitutional amendments that would be very difficult to pass in the current environment.

A complete reboot of the Supreme Court.

A one time appointment of a new Chief Justice by the President to require unanimous confirmation by the Senate.

Going forward, regular Justices will be appointed (with confirmation by the Senate under more or less the current rules) by the Chief Justice.

If the Chief Justice seat becomes vacant, the remaining justices will elect one of their own to become the new Chief (maybe with Senate confirmation).

Lower court judges will be appointed by the Supreme Court acting jointly, with Senate confirmation.

Would this do the job. I have no idea, but I give it as much chance of being effective as all the other proposals out there.

[Jett's Pop]

So, do the term limit proposals advocate (1) 18-year terms for Supreme Court Justices, with the possibility of reappointment at the end of the first 18 years (presumably for another 18-year term) or (2) an 18-year appointment with no chance of reappointment. I really don't understand the argument for the latter. If the President and the Senate both agree that someone is doing a good job, why shouldn't they be able to reappoint that person?

[Stephen Lathrop]

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.

When you reject, "abrupt ideological shifts," on the Court, you seem to accept tacitly an ideological court. If you accept an ideological court, then you damned well better build in a mechanism for abrupt ideological shifts.

[jb]

I think this is basically the problem. Our Constitutional system depends on each of the branches being up to the task (and, to a lesser extent, being self-interested). The legislature has become completely dysfunctional, and the executive branch and the courts have expanded in influence as a result.

We've veered so far in this direction that arguably several of the Senate races in 2018 were decided based on how the candidates would or did vote on Supreme Court nominees rather than their legislative approach. Even the voters don't expect legislators to write and pass laws at this point.

[Armchair Lawyer]

A big chunk of the problem there is that rather than compromise and write laws, legislators grew used to just getting the Court to decide what they wanted. Then they didn't have to compromise