Supreme Court

One Cheer for Supreme Court Term Limits

I'm mostly skeptical, but ...

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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.

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  1. This is a good case for using a random number generator. When a Justice’s “number” comes up, he or she is removed from the Court immediately and replaced by the current President. Run the RNG every set number of years.

    This bypasses any sort of “lame duck” period for a Justice.

    1. Have a pool of pre-confirmed nominees, which each President gets to add one to each year, then as each vacancy comes up, one of them is selected at random to fill the vacancy. Term limits apply to the pool, of course.

      Random selection by a bingo cage in public, because there’s a record of judges gaming supposed “random” selection.

      But any real reform would have to be by constitutional amendment.

      1. But, then it’s too easy to game the pool of pre-confirmed nominees. So, it needs to be as broad a pool as possible.

        Just put every man, woman, and child with a social security number in the US into the pool. Random selection by a very large bingo cage in public. Then we’ll get a truly diverse SCOTUS that represents all of America. No more “just people who went to Harvard or Yale”

        Sure, some people may complain “How can you put a 4-year old on the SCOTUS!” but there’s nothing against that in the Constitution, and doesn’t the 4 year old have to live under the same laws as the rest of us?

      2. We already have that.

        It’s on reason the circuit nomination hearings for Estrada and Barrett were so contentious. They were seen as fast tracked for SCOTUS.

    2. This bypasses any sort of “lame duck” period for a Justice.

      All it does, though, is spread the lame duck period over all the justices, in expectation. That is, instead of one justice knowing his term will end in two years, say, all of them know they have a 1/9 chance of their term end in two years.

      So there will still be some sort of lame duck effect.

  2. The discussions about SC Justices and term limits / court expansion are kinda dumb if one tries to approach them from some sort of neutral, “judiciary” stand-point.

    These are political questions and one’s answers will simply depend on the situation of the day, e.g. if term limits or court expansion will help or hurt my team today (e.g. the current flip-flop from both parties about late term nominations).

    My point is, in the US, everything is political and since we have a winner-take-all system (which is good IMO), I’m good with our current constitutional set-up and don’t see any need to change anything.

    We’ve been a highly successful country for centuries now and our success is due in large part because of our ability to swing left and right in a peaceful manner through elections.

    Nit-picking at the judiciary process won’t change anything and even may hinder our ability to swing left or right.

    There is no magic answer about the judiciary so I’m in favor of not changing anything.

    1. Absolutely true. Here in Illinois, state Supreme Court justices are elected for 10 year terms(by districts), initially on a partisan ballot, but at the end of that ten year term, are subject to a yes-or-no ballot for retention(for another ten tear term). If the noes prevail, a sitting justice would have to run for re-election against an actual opponent on a partisan ballot(and that assumes his party’s voters choose him to run again in a primary).

      This year, one justice is running for retention. Many of the same folks who favor term limits for the US Supreme Court are supporting this Justice for retention (to a third ten-year term). Much is made about how politicizing the judiciary should be avoided, but they conveniently forget that this justice’s immediate predecessor(a member of the other party) was voted out for having authored an unpopular decision. It all depends on whose ox is (currently) being gored

      1. Elected judges is a contradictio in terminis. It’s not a thing. You’re either elected or a judge, but never both. (Particularly if you have to run for re-election.)

        To the extent that many US states have elected judges, those are just politicians who are called judge for some reason, in the same way that there are many places where law enforcement officials are called Sheriff even though they have no relationship to either a shire or a king. Sometimes names stick, long after they’ve stopped being technically right.

        If you want an elected third mini-house of legislature with only veto-powers to sit next to the Senate and the House of Representatives go right ahead. That may well be a good idea. But don’t pretend that such people would be judges in any objective sense.

        1. I’d be interested in hearing an expansion of this position, although i suspect that argument is going to be tautological.

          1. O, it’s absolutely going to be tautological. But the underlying point is a moral/philosophical one: The reason why we have judges is to guarantee a system of government based on the rule of law. Putting politicians in judges’ robes undermines that to the point of making it dead letter.

    2. These are political questions and one’s answers will simply depend on the situation of the day

      I’m in favor of not changing anything.

      Of course, you are.

      (But I disagree with your premise. I think it is possible to recognize that the current situation is dangerous to our country.

      From a Republican perspective, qualified judges can’t get meaningful support from Democrats and are subject to scrutiny of their past for disqualifying behavior. I think it is possible to agree that, in a healthy society with a well-functioning government, an appointee like Scalia or RBG can get confirmed unanimously or nearly so.

      From a Democratic perspective, Democrats have won more votes than Republicans in 6 out of the last 7 elections and have controlled the White House for 4 out of the last 7 administrations, yet the Supreme Court is tilted toward Republican nominees 6-3. A minority of the country is getting the Court they want which a neutral observer should see as not really ideal. Elections have consequences, but it is important that the gravity of the election not be altered by the randomness of the Grim Reaper’s selections or the strategic retirements of “non-partisan” Justices or, you know, eminently qualified nominees like Garland not even getting a vote, an even worse outcome than getting a vote on partisan lines.

      So we don’t live in an ideal world and it is possible to recognize it should change, without that recognition being based in partisan gamesmanship. But recognizing the need for change is not the same as agreeing to change that tilts the field. That’s why I think a term limits idea or something would have to be phased in and weighted toward the future when most current players won’t know which rules would work to their advantage. The goal can’t be for current gain (whether undoing Republican gains or for Republicans to solidify their advantage), but to come up with something that the United States of 2050 will thank us for.)

  3. Presumably the flip-side of that final period problem is whether in the current system Justices start behaving differently as they get older. Logically, under the current system they should be caring less about their professional reputations (and therefore relatively more about their politics) as they get older and have fewer expected life-years left. But I’m not sure that that’s what we’re observing.

    Also, not that just about every other country in the world has term limits for supreme court judges. So it’s not like you’d have to guess at what they might do after they leave the bench. You can just look at other countries.

    1. This just in: Monckton Chambers has just announced that former British ECJ judge Christopher Vadja QC is rejoining them as a barrister after eight years as one of Europe’s most senior judges: https://www.monckton.com/former-uk-cjeu-judge-christopher-vajda-qc-returns-to-monckton-chambers/

  4. Of course, all of these ideas have a negative impact on the ‘balance of power’, such as it is.

    If there are to be term limits, the SC must become the last job held. To avoid all the “last year” issues, require that the justice retire, and not author books or hold any employment, or have a business. This seems quite unlikely.

  5. Sure, get on it as soon as the Dems add another 2 or 4 justices to it.

  6. Quick question from a non-lawyer: what about an age limit for SC justices, perhaps 70 or 75? That would allow someone such as Barrett 22 years on the court, which is a pretty good run, and would mean that a retiring justice would be unlikely to start another career.

    That said, or asked, I’m also wondering if the notion of a limit, whether a term limit or an age limit, is a solution in search of a problem? If a nominee is acceptable and is supported by the Senate, etc, the only reason for that justice to become unacceptable later is the desire of a president to appoint someone of his/her own choosing. That has nothing to do with the qualifications of the justice, and is more of a slippery slope….

    1. An age limit would incentivise presidents to nominate ever younger justices, which doesn’t seem desirable per se.

      If a nominee is acceptable and is supported by the Senate, etc, the only reason for that justice to become unacceptable later is the desire of a president to appoint someone of his/her own choosing.

      Well, that or the possibility that the Justice might become incapacitated but not dead before they’ve had the chance to retire.

      1. “Well, that or the possibility that the Justice might become incapacitated but not dead before they’ve had the chance to retire.”

        That seems to be a potential problem now, but without forced retirement.

        1. Yes, that’s what you were asking about.

  7. The solution is to go back to the norm before Robert Bork: vote to seat a nominee based on qualification and temperament only. Opposition based on ideology should be prohibited.

    1. Sure. Can we then also go back to the norm that Presidents seek to nominate candidates on that basis, seeking the broadest possible support in the Senate?

      1. The problem is that the left and right’s understanding of what judges and Justices are supposed to be doing is so different. It’s not too bad at the lower levels, because they’re not in a position to make policy. But by the time you reach the Supreme court, the conceptions of what Justices are supposed to be doing is actually disjoint: What makes a Justice a good justice from a right wing perspective is disqualifying from a left-wing perspective, and visa versa.

        It’s not that this is genuinely the case for 90% of the cases, of course; Over 50% of the cases are decided unanimously.

        But it’s the other half of the cases that people are actually concerned about, the ones that come out 5-4. (And there are hardly any 8-1 cases.) The ones with some political implications.

        For those cases, if you’re approaching them the way the right thinks you should, the left thinks you’re engaged in judicial malpractice. And visa versa. There’s no such thing as a candidate they’ll both agree on.

        1. I’m sorry, but I’m not buying that there aren’t plausible candidates for the Supreme Court that you couldn’t get 60-70 Senators to vote for. (Let’s not set the bar too high.) Even Merrick Garland would have been in that range, and that was in the context of extreme politicisation of the appointments process. (In fact, that’s the whole reason why Obama picked him. Because he was the most moderate candidate a Democratic administration could come up with.)

          1. A 60-70 Senator majority in favor of Garland could have forced a vote. Surely you know that.

            1. Not without the 10-20 Republicans in that list going to war with their own majority leader they couldn’t have.

        2. The difference between the left’s and right’s expectations of how a justice ought to decide cases didn’t arise in a vacuum. It arose when the Democrats, during the New Deal period, decided it was legitimate to change the Constitution, not by the amendment process, but by appointing Justices who would interpret it differently — in other words “Injustices.” Now that that can of worms is open, there is no way to make either the Court or the appointment process non-political again, especially not without admitting that the change was both immoral and a bad idea.

          1. The difference between the left’s and right’s expectations of how a justice ought to decide cases didn’t arise in a vacuum. It arose when the Republicans, during the Lochner era, decided it was legitimate to change the Constitution, not by the amendment process, but by appointing Justices who would interpret it differently — in other words “Injustices.” Now that that can of worms is open, there is no way to make either the Court or the appointment process non-political again, especially not without admitting that the change was both immoral and a bad idea.

          2. Oops, sorry, I meant:

            The difference between the left’s and right’s expectations of how a justice ought to decide cases didn’t arise in a vacuum. It arose when the Federalists, during the founding era, decided it was legitimate to change the Constitution, not by the amendment process, but by appointing Justices who would interpret it differently — in other words “Injustices.” Now that that can of worms is open, there is no way to make either the Court or the appointment process non-political again, especially not without admitting that the change was both immoral and a bad idea.

      2. RBG and Scalia represent the two ends of the spectrum. Both were confirmed by wide margins. Sotomayor and Kagan were as ideological as RBG and they received bipartisan support. The last three nominees are no more radical than Scalia, so they should enjoy the same level of support as him. Instead they were confirmed/moved forward totally on party lines.

        1. You left out Garland.

          1. I left out a lot of people. What’s your point?

            1. That you only listed three Trump nominees.

              1. I picked my examples from the last two administrations. And two archetypical SC justices from both ends of the spectrum. Garland is unknowable in terms how the Senate votes would have shaken out.

                And it doesn’t matter. The well is truly poisoned by now. There’s no way to pull out of this mess unless we go back to before what has turned this into hammer and tong: opposing well-qualified nominees based on ideology. If that is going to be the battleground that is fought over, then anything goes as long as it’s constitutional. You nominate who you wish, and they get seated if the senate majority is willing to vote for them. That’s it. High flying words about rules and norms and principles are only useful so as long as they help to muscle the nominee through the whole process.

                1. The last three nominees are Barrett, Kavanaugh, and Gorsuch.

            2. Garland should have received bipartisan support. And had he been confirmed, it is much more likely Gorsuch and Barrett (assuming Barrett would have been chosen over Kavanaugh) to replace Ginsburg) would have too.

              1. Thomas got lynched by the Senate and was confirmed 52-48.
                Alito got filibustered. And was only confirmed 58 to 42.

                Miguel Estrada was explicitly targeted by Chuck Schumer because he was conservative and Hispanic and they were afraid he would be too hard to oppose for a future SC seat.

                “Should have” left the building a long time ago.

                1. Thomas got lynched by the Senate

                  Phrasing!!!

    2. I down for that, PeteRR.

  8. I’d much rather see term limits for Congress before the Supreme Court.

    Congress reigning in the court, under a tighter yoke, isn’t a happy thing. Them treating it like a crypto legislature is why we are in this situation to begin with.

  9. While I nonetheless oppose any change to the current structure (other than an amendment to Constitutionalize the current size), the “future job” issue of a term-limited Justice seems to be a non-issue. A term-limited Justice no longer on the Court is essentially a retired Justice who continues to sit on other Federal courts as long as they wish, wherever they wish. Give them full pay and let them sit when and where they want, just not on the Court. This would also contribute to the gradual need to increase the number of Federal circuit judges as US population increases (presuming that court case count relates to population.)

    1. Many term-limited Justices could likely make much more money in the private sector – even if that meant losing their pension (and, of course their salary) – especially if during their 18 year term they are triangulating to do just that.

      As well, sitting full time on other Federal courts is likely not nearly as interesting an option once one has sat on the Supreme Court. Rather like going from police chief to being a parking enforcement officer.

      I suspect many Justices would just “retire from public service” after being term limited out and pursue other opportunities.

  10. My proposal would be that Supreme Court justices always be drawn from the federal judiciary and return to the court they were appointed from at the end of their term (regardless of vacancy).

    I’d also require the Senate to actively reject a nomination and send the President an alternative candidate. If the President rejected the Senate candidate, then require the House to chose between them.

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  12. If we are passing a new Judiciary Act, other fixes are needed. The number of Justices should be even, to avoid 5-4 decisions, and to preserver more precedent. The Supreme Court should be moved to the middle of the country, like to Wichita, KS, to avoid the rent seeking, tyrannical culture of the gayest town in the US, Washington DC. Preclude anyone who has passed 1L. Make the number of Justices 500, a legislature size, if they are going to invent laws based on their subjective biases and feelings.

    1. Ties simply affirm the lower court’s decision without creating a precedent. We don’t want state supreme courts deciding national statutes or much less federal constitutional law.

      1. The lower courts are often following prior Supreme Court precedent.

        1. If they are, SCOTUS won’t grant cert.

    2. An even number of Justices would tend to leave circuit splits unresolved so those living in Texas could be living under one interpretation of federal statutes and the Constitution and those living in Maine could live under different interpretations.

      In the case of circuit splits where roughly half the Justices come down on one side and the other half on the other side, a decision on one side or the other is likely almost always better than no decision.

      This would be particularly problematic when the issue being decided has national implications. For example, consider what could happen if one circuit ruled that Trump’s “travel bans” were legal and another decided they weren’t and the Supreme Court was tied on the case at 4-4. Would a “banned person” be in the country legally if they entered at a California port but not if they entered at a Florida port? Would that person be subject to deportation if they entered at a California port and then flew to Orlando? And what about someone entering at a port in a state which isn’t in either the Ninth or Eleventh Circuit.

      IMHO, a bad idea.

  13. <a href="https://balkin.blogspot.com/2020/10/dont-pack-court-regularize-appointments.html"Jack Balkin's idea of senior and junior Supreme Court justices, with junior justices becoming senior justices after 18 years, goes a long way in solving the final-period problem. The hope is the appointment problem is mitigated because all nominations are in odd-numbered years.

  14. I believe term limits would have all the problems listed above, but my main objection is making everything too predictable. I like politicians not being able to predict the future, politically. I like justices dying in office, or retiring when they feel like it, and Presidents and Senators having no warning.

    What I hate most about politics is the predictable flip flopping as the vote wind changes; it’s good that they pretend to represent people by acting as their constituents desire, but it would be nice if they provided more than lip service. I want them shaken up by unpredictable events, which brings out their true inner nature.

    The measure of a politician is best taken by crises, not by planned predictable events.

  15. 1) Let each president get a free pick at the beginning of each term to replace longest serving justice (defacto 36 year max service); 2) all nominees get an up or down vote in 120 days or else president gets a recess appointment (if he/she wants) or a special session of congress; 3) fix number of justices at 9:

    Upon inauguration of the President, the most senior Justice of the Supreme Court shall become ineligible to serve as Justice at the end of the current term of the Court or 180 days subsequent to the inauguration, whichever occurs first.

    If the Senate fails to either reject or confirm a nomination made by the President under Article II, Section 2, Clause 2, within 120 days of such nomination, the President may elect to either grant a Commission of the same form and conditions as one authorized when the Senate is in Recess, or to call a special session of the Senate to convene and act on said nomination no less than five and no more than ten days later, at which a majority of those voting, regardless of the presence or absence of a quorum, shall either reject or confirm said nomination. The Vice President of the United States shall have no Vote, unless they be equally divided.

    The Supreme Court of the United States shall consist of the Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

  16. Supreme Court term limits would make the court better correlated with election results. However, it would not solve the problem of the Supreme Court. Its biggest problem is judicial review. That violates Article I Section 1, giving “all” lawmaking powers to the Congress. Supporters of judicial review should enact an Amendment.

    I see no difference between conservative and liberal Justices. All are Ivy indoctrinated, big government, lawyer rent seeking adherents. All are bookworms who don’t know anything. Yet, they get to set national policy on highly technical, complicated, difficult issues. So “hang ’em high” Scalia led the intellectual charge against sentencing guidelines. Under his Ivy indoctrinated leadership, murders surged in all cities.

    A Judiciary Act is needed. If you want to improve it, move the Supreme Court to the middle of the country, like Wichita, KS, to get it out of the toxic, rent seeking, big government tyranny culture of Washington DC. Make the number even to preserve precedent. Increase the number of Justices to 500, which is the size of a legislature.

    1. Seriously? That again? I’m sure it’s only been two weeks or so since you made that very same point and I (and other commenters) patiently explained that the judicial power is vested in the courts, and that that logically includes the power to uphold the hierarchy between the Constitution and all other law in any given case.

      1. Where in the constitution does it say what you said?

        1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

          This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.

      2. When you say, logically, you mean constructively. That means, made up, usurped, fictitious. You and the judges are in insurrection against the constitution.

        1. Judicial means, resolve cases and controversies, not law making.

  17. What a joke. If judges like Ginsberg would behave professionally, there is no need for the banter. SCOTUS is not a hospice. When the morons in black get old and senile, they should ‘retire’, take up fishing or some other form of human endeavor which does not manifest the psychosis of jewdicial power.

    If it were not for the jews, the supreme court would not be such a ridiculous institution.

    1. The Supreme Court is mostly Catholic. If it weren’t for the lawyers, the Supreme Court would not be so ridiculous.

  18. We saw the final-period problem demonstrated by Kennedy’s retirement year of the court, he gave consistently right-leaning opinions he otherwise was a flip-vote on.
    Off topic, anybody else believe Roberts will retire if Biden wins? He is adamant that the pols cannot politicize the Supreme Court.

    1. “Roberts will retire if Biden wins? He is adamant that the pols cannot politicize the Supreme Court.”

      What’s the connection?

  19. All of these proposals suffer from a “Do Something!” mentality.

    Just. Don’t.

    If a party blocks nominations excessively, they will be punished politically, or not.

  20. In all of the fervor to “get even” I’m afraid will poison political discourse for another generation.

    Roe v Wade has already done it for the last generation and we haven’t yet reached the political accommodation there.

    1. My bet’s on race + gender…and it is the coalescing of the two that is particularly relevant because it will be white male vs. the rest. Add to this the reality that whites will become a minority in America within 1 generation and we’re off to the ball game…

  21. Everyone here is trying to solve a political problem using the COTUS – exactly what the Framers feared and tried to prevent. I’m not sure which is more scary, the fact that things like this are being discussed or the actual possibility it will occur.

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