The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of the more focal level-headed proposals for Supreme Court reform is imposing 18-year term limits with guaranteed rotation in office every two years. I share the view that this probably would need to be done by constitutional amendment. But in my view that is not a major drawback, and a constitutional amendment could also fix the number of Supreme Court Justices at the same time, which is probably a good idea at this point.
Instead, I worry about this proposal on the merits. I have two major concerns, neither of which were covered in Jonathan's recent post.
The final-period problem. If Supreme Court Justices will no longer hold their jobs for as long as they are healthy and interested, then they will probably start holding other jobs after they are Supreme Court Justices. This risks changing their behavior. There will be a natural tendency to start auditioning for one's next job. And regardless, the sitting Justices will lose some of their current incentives to invest in their own judicial reputation as judges.
(And in standard game theory, this naturally unravels. In their last year on the bench, the Justice realizes they'll never be a Justice again, so they may as well seize the day. In the next to last year, they realize they'll be seizing the day next year, so they may as well start this year. In the next to next to last year, they do the same thing, and so on.)
Whether this is a big deal or not depends on what kinds of norms and incentives you think govern the Justices. But I think that a lot of what makes the Court function as well as it does is a shared commitment to judicial craft among the Justices. People who think the Court is already 100 percent political have a great failure of imagination.
Note that this problem is not solved by, say, banning ex-Justices from litigating before the Court, or even by banning them from practice law. Even if they aren't commercial litigators, ex-Justices might take other jobs for commercial interests. Or work at think tanks, become media personalities, run for public office or even try to enter academia. All of these paths create temptations to suck up to one's future constituency. Corruption comes in many guises.
Nor is this problem solved by appointing Justices who are old enough that they likely won't have the energy or interest in another job after service on the Court. Too old, and there is too much of a risk they won't finish their term, which undermines the proposal. Younger Justices will finish their terms, but then they are likely to want to do something else.
[EDITED TO ADD: And I rather doubt it will be solved by giving the term-limited Justices appointments as circuit justices or other less glamorous judicial duties. The Justices can't be forced to accept those retirement posts, and I think it's likely that at least some of them will aspire to positions that are more lucrative, more glamorous, more powerful, or some mix of the three. That aspiring is that risks unraveling the Court.]
When an institution is held together by norms, one must be very careful about the law of unintended consequences.
The appointment problem. Second, the term limits proposal doesn't solve the more pressing problem, which is the deterioration of norms for Supreme Court appointments. For instance, nothing in the nature of term limits stops a future opposition Senate from simply refusing to confirm any judicial nominees until their party is in the presidency.
So any term limits proposal will likely also need additional reforms to the appointments process. Possibilities include: giving the President unilateral appointment authority if the Senate doesn't behave properly; giving some third party appointment authority if the President and Senate don't agree; allowing the ex-President or his party to hold on to appointment authority even after four or more years have passed; or (my favorite) requiring that the President and Senate should be "confined together until a nominee has been approved."
Maybe some of these reforms would work. But all of them would transform the current dynamics of Supreme Court appointments, probably more dramatically than the term limits themselves. And they have not received the same degree of intellectual vetting or bipartisan agreement as term limits. It ends up being an afterthought.
When your institutional reform both upends existing institutional norms, and requires more dramatic secondary institutional reforms in order to work, there is reason to worry. So for both of these reasons, I think a term limits amendment is a bad idea on the merits.
A placebo effect? On the other hand, there is one important thing to be said in favor of Supreme Court term limits: there are so many other ideas for Supreme Court reform that are worse. Term limits will probably have only a modestly nefarious effect, many other proposals are more nefarious or more chaotic. Maybe it would displace the worse ideas.
Moreover, at the moment Supreme Court term limits seems to be perceived as a relatively level-headed, non-partisan, good-government attempt to do something about the Court. So maybe the political movement that would be needed to pass such an amendment would itself help transform our institutional norms in a healthy way. In other words, a term limits amendment might help not because it is a good idea, but because it is widely believed to be a good idea.
This may sound like faint praise, and in a way it is. But I worry that escalation over the Court will soon become unsustainable. And I am especially worried because I see smart people on both sides of the aisle who seem to think it is all the other side's fault. That is not a recipe for de-escalation, and we may need one soon.