Hendrik Hertzberg Endorses Supreme Court Term Limits

In the latest New Yorker, Hendrik Hertzberg endorses 18-year term limits for Supreme Court justices, relying on a paper that Steve Calabresi and I published in 2006.

Hertzberg considers this reform the one good idea put forward by the now-defunct campaign of Texas Governor Rick Perry:

This ingenious idea has been kicking around in legal circles for decades. It tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy. Justices would still get lifetime appointments. After their eighteen years with the Supremes, they could choose to serve on other federal courts, bringing their experience and, in some cases, their wisdom to the appellate bench. Even if they didn’t exercise that option, though, their salaries would continue for life. If a Justice died or retired before his or her eighteen years were up, a substitute would be appointed via the usual process—Presidential nomination, Senate confirmation—to serve out the remainder. The interim Justice would not be eligible for reappointment to the Supreme Court, but he or she would have the same sweet post-Court deal. And what lawyer wouldn’t jump at the chance to be a Justice of the highest of high courts, if only for a year? . . .

From 1789 through 1970, the average tenure of a Supreme Court Justice was about fifteen years. For Justices who have retired or died since then, the average tenure has been twenty-six years. This isn’t just an artifact of longer life spans. As the Court’s importance has grown—Marbury v. Madison made it the only one of the three federal command posts that is functionally sovereign, and the polarized gridlock of the elected branches has only made it more powerful—and as it has become more “political,” aging Justices have tended to hang on well into senescence, especially when the sitting President is of a different ideological persuasion. Presidents, for their part, seek to extend their influence into the far-distant future, by finding the youngest nominee they can get away with. (Another incentive: while younger is not always wiser, it does make for a shorter paper trail.) The prospect that a Justice will be handing down decisions for close to half a century [more accurately: a quarter-century or a third of a century–JL] turns confirmation fights into political Armageddons. The randomness of openings abets the now-or-never mentality. Richard Nixon named four Justices during his five years in the White House; Jimmy Carter, during his four years, named zero.

Under our proposal, slots would open in the summer of odd years, thus guaranteeing two appointments in a president’s four-year term.

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