Term Limiting Supreme Court Justices:
Lately I was asked to endorse the following proposal by law professors Paul D. Carrington and Roger C. Cramton to limit the terms of Supreme Court Justices:
I tend to favor term limits--what the Founders called "rotation in office"--for elected officials, but this proposal gave me pause. I am not as unhappy with the current system of judicial appointments as some on the left and right. Still, this proposal seems to have some merits in that it regularizes the process of adding new members to the court. (I cannot find the actual proposal on line so you can read the justifications offered by its authors, but you can read a New York Times story on the proposal here. If someone finds a link to the full proposal, I will add it here.)
So far, I have not signed on, but was curious to hear thoughtful reader reaction. So I have activated comments. I am particularly interested in hearing potential problems with the proposal, as its purported benefits are more obvious. However, feel free to voice your support as well as opposition. But reasons will be more persuasive to me than expressed preferences.
THE SUPREME COURT RENEWAL ACT OF 2005As explain by its authors, this proposal would have the effect of limiting the term of "active" justices to approximately 18 years:
Congress should enact the following as section 1 of Title 28 of the United States Code:
(a) The Supreme Court shall be a Court of nine Justices, one of whom shall be appointed as Chief Justice, and any six of whom shall constitute a quorum.
(b) One Justice or Chief Justice, and only one, shall be appointed during each term of Congress, unless during that term an appointment is required by Subsection (c). If an appointment under this Subsection results in the availability of more than nine Justices, the nine who are junior in commission shall sit regularly on the Court. Justices who are not among the nine junior in commission shall become Senior Justices who shall participate in the Court's authority to adopt procedural rules and perform judicial duties in their respective circuits or as otherwise designated by the Chief Justice.
(c) If a vacancy occurs among the nine sitting Justices, the Chief Justice shall fill any temporary vacancy by recalling Senior Justices in reverse order of seniority. If no Senior Justice is available, a new Justice or Chief Justice shall be appointed and considered as the Justice required to be appointed during that term of Congress. If more than one such vacancy arises, any additional appointment will be considered as the Justice required to be appointed during the next term of Congress for which no appointment has yet been made.
(d) If recusal or temporary disability prevents a sitting Justice from participating in a case being heard on the merits, the Chief Justice shall recall Senior Justices in reverse order of seniority to provide a nine-member Court in any such case.
(e) Justices sitting on the Court at the time of this enactment shall be permitted to sit regularly on the Court until their retirement, death, removal or voluntary acceptance of status as a Senior Justice.
The result is that all Justices appointed to the Court in the future would serve as the nine deliberating and deciding members for a period of about eighteen years (depending upon the interval between the initial appointment and the promptness of the appointment process eighteen years later). However, the Act does not restrict the lifetime tenure of the Article III judges appointed as a Justice or Chief Justice of the Supreme Court. Instead, it defines the regular membership of the Court as consisting of the nine most recently appointed Justices. Some of the Senior Justices who no longer participate regularly in the Court's decisional work may be called upon to provide a nine-member Court when that is necessary (see Subsection (d)). And all of them continue to retain the title of "Justice of the Supreme Court" and to exercise the judicial power of the United States as judges of a circuit court, a district court, or some other Article III court. In short, the Act defines the "office" of a Supreme Court "judge" in a new way. This feature distinguishes the Act from statutory proposals to place age limits or fixed terms of service on Supreme Court Justices. Senior Justices will continue to have lifetime tenure as Article III judges in accordance with the "good behavior" clause of Section 3 of Article III.This proposal has already been endorsed by law professors representing a wide political spectrum. They include: Vickram D. Amar, Jack M. Balkin, Steven G. Calabresi, Walter E. Dellinger III, Richard A. Epstein, John H. Garvey, Lino A. Graglia, Michael Heise, Yale Kamisar, and Sanford Levinson.
I tend to favor term limits--what the Founders called "rotation in office"--for elected officials, but this proposal gave me pause. I am not as unhappy with the current system of judicial appointments as some on the left and right. Still, this proposal seems to have some merits in that it regularizes the process of adding new members to the court. (I cannot find the actual proposal on line so you can read the justifications offered by its authors, but you can read a New York Times story on the proposal here. If someone finds a link to the full proposal, I will add it here.)
So far, I have not signed on, but was curious to hear thoughtful reader reaction. So I have activated comments. I am particularly interested in hearing potential problems with the proposal, as its purported benefits are more obvious. However, feel free to voice your support as well as opposition. But reasons will be more persuasive to me than expressed preferences.
Update: On comments, Crime and Federalism Blog notes this online Legal Affairs Debate last week between Norman Ornstein of AEI and my BU colleague Ward Farnsworth. Readers may want to read it before adding their 2 cents.
Related Posts (on one page):
- A CLOSER LOOK AT TERM LIMITS; PROBLEMS WITH THE CARRINGTON/CRAMTON PROPOSAL.—
- Term Limiting Supreme Court Justices:
- NY Times article on Supreme Court term limits.--
Debate Club
Wouldn't this proposal create strong incentives for judicial pandering to the President and Congress? Wouldn't Justices who wanted to be active for more than 18 years simply render decisions that the political branches liked, then resign their commissions, and then ask the political branches to reappointment them to the Court? Wasn't this the sort of thing that Article III was designed to prevent?
The wording of the proposal also seems to not consider the possibility of an Associate Justice being promoted to Cheif Justice.
I have to agree with A.S. S/Ct appoitments necessarily polarize Congress. Forcing this to occur each term only makes it less likely that the Sentate will be able to comrpromise on other, non-judicial, matters, which is, after all, what they are there for.
John N.'s comments can probably be resolved by amending the law to elimination the resign/reappointment loophole.
Those were my <b><i>exact </i></b>thoughts upon reading this. Though I would note, as a former clerk to a senior circuit judge, that senior judges still participate in decisions (in the Ninth Circuit, some are very active), but that they can't participate generally in en banc decisions.
I nevertheless think this is a good proposal, but a better way to deal with the clear constitutional problem noted above is to say that the Justices are in fact Circuit Judges who get to sit by designation on the Supreme Court for a number of years. I saw a proposal along these lines before.
The justifications for 18-year terms--that they diminish the stakes in the judicial nomination/confirmation conflict, and reduce the justices' temptation to time their retirements to suit political ends--effectively concede the point that the justices' role has long ceased to be anything even resembling neutral, dispassionate application of the Constitution and federal statutes. It is apparently now widely acknowledged that candidates are nominated by politicians for the sole purpose of enshrining particular political viewpoints--even constituencies' interests--in Constitutional and statute interpretation. Given, then, that the justices' role is a de facto political one, what's the argument for not making them every bit as accountable as any other political actor?
Of course, once they're political actors, it's hard to see what benefits they provide that aren't already covered by the other democratically accountable branches of government. Then again, perhaps if they had simply stuck to being judges in the first place, and hadn't succumbed to the temptation to abuse their powers for nakedly political ends, then they might not seem so utterly superfluous now.
I would love to see that case though, where the first rotation that would be forced to step aside challenges the law, but then would probably have to recuse itself? Can you imagine the politicing that would go on within the SCOTUS as that case was considered?
But even if this would pass Constitutional muster, it strikes me as the type of fundemental change to the way our government has functioned that even if it could be done by legislation, it should be done via a Constitutional amendment. Some things should not be done by legislation, and making a marked change to the effective tenure of SCOTUS judges seems to me to fit that bill.
Since that time, we've lost only one justice (Powell), so that means that, by now, we would have had, at most, 9 more justices added (roughly 17 appointed during Congressional terms minus the 8 appointed since Rehnquist).
So, now we would have a supersized Supreme Court with nine sitting justices and 9 more wandering the halls. The notion of nine justices with time on their hands is not comforting, but at least they can form a softball team.
I would object (if for no other reason) on aesthetic grounds. The proposal reads like it was written by a pair of law professors who sat around trying to think of some way to advertise just how damned clever they are.
If we want limited terms, let's amend the Constitution to allow Justices a single X-year term (including any time spent as Chief Justice). I don't see the appeal of this Rube Goldberg "senior justice" nonsense.
A waste of time.
The constitutionality question is fascinating.
On the one hand, the purpose of life tenure for judges, which is principally to protect judges from retribution for their decisions, is maintained in this plan, because their demotion to Senior Justice (which is essentially a Circuit Justice who occasionally gets to substitute-teach) is automatic and not subject to any real discretion on the part of the political branches (though their replacement could be held up by a filibuster and prolong their service as an active judge). The secondary purpose of life tenure, which is to attract bright lawyers to a position with comparitively low pay, is also maintained, because the salary of Senior Judges does not diminish after they are put out to pasture in 18 years.
On the other hand, doesn't life tenure mean life tenure at the same level of the judiciary? After all, if a Republican Congress tried to demote Justice Souter back to the 1st Circuit (or a Democratic Congress tried to demote Justice Thomas back to the DC circuit) but maintained their salaries at the level paid to Supremes, does anyone really believe that that would fly? Does the fact that the demotion would come automatically after 18 years change this equation?
And who would decide the constitutionality of this scheme -- every Justice would probably have to recuse themselves since they would all be personally impacted by their decision.
My other thought is, what impact would this have on gaming the Court's decisions from inside the building? If you knew that another justice had only one year left in his 18-year term and you were inclined to overrule a decision they supported, wouldn't this affect your vote on what cases to hear or turn down? My understanding is that currently, justices don't disclose their retirement until the end of the term in which they retire, which would seem to somewhat deter this kind of strategic cert-denial. But if you knew with relative certainty when your nemesis was out the door, how could you not take that into account when deciding what cases to hear?
If we can somehow couple this with a law that makes laws expire after 25 years unless congress renews them, this means that we'll be without all but the most essential laws within my lifetime.
The basic premise to this entire plan seems to be that justices should reflect the political will of the majority. Ignoring for the moment the need for justices to protect the needs of the minority, and presuming that political will is ever accurately reflected in the composition of Congress, the proposal completely de-emphasizes any qualities to the justice him or herself as a just and capable interpreter of law. The language discussing the recall to the bench of "Senior Justices" in reverse seniority is particularly telling in this regard. It seems to reflect the belief that the more recent the nomination the more accurately the justice would be a proxy for the will of the people, and that this political accountability would be desirable. Even assuming this belief to be sound, is that really what we want from our justices? What about experience? What about their capabilities as legal thinkers?
When we lament the current politicization of the nomination process, we are lamenting the loss of any reasonable basis to evaluate the qualifications of judicial nominees. We should reverse that trend, not codify it.
In Minnesota, the justices are elected, and thus must run for office. One of my friends asked the justices to comment if they thought that raised political problems. Essentailly, the response by the judges was that they do not let it affect them, but that the infusion of politics into the judiciary is disturbing.
That is exactly what this plan will do. While the current system does have political undertones, it is not at the same level that you find today. I suspect that if this plan were enacted, you would see parties nominating their proposed justice prior to the fall elections. In effect, the fall elections would be a sort of electoral college for choosing a justice. We would, in many ways, be selecting a "Super-legislature."
The dangers in such a plan should be obvious and need not be discussed in great deatail here in the messages section. We could truly take a large step in the direction of law by judicial decree.
As taught in my first year ConLaw course, lifetime appointment was a crucial move for the United States. It insulated the judiciary from the political movements that it was to judge. While this plan make us a Banana Republic, it lowers some of the barriers from that direction.
Personally, I am inclined to believe that the Supreme Court has become the ladies canasta club and kniting circle at the old folks home and I am just as interested in their thoughts on important matters of public policy as I am in their thoughts about the time that Fat Louie Layman ran off with Fannie Westerhide to Chicago and eloped (don't you know that was quite a scandal). I exclude Nino and the Black Guy because they usually make sense, but it must be a terrible strain on them to listen to all those old women. It makes me shudder just to think about it.
I think it is a problem that needs to be solved. I do not care for this solution. I believe that it is long past time to adopt manditory retirment ages and term limits for all federal officials.
I would suggest that manditory retirement be imposed at 82. I would also say that I do not care for the idea of a term limit unless it is on the order of 19 years (3 senatoral terms plus one year) or even 25 years (4X+1) and a minimum age of appointment of 50, which is quite reasonable, be imposed. (I would favor 50 as the minimum age for senators and presidents also). I assume this would all require a constitutional amendment.
Finnally, I think part of the problem I see is the assumption by each of the Justices that he has Godlike powers. I think it would be salutary to greatly expand the court to say 30 or even 70 members and to have it sit in panels across the country with greater frequency than it now does. Saving en-banc hearings for those rare matters like the criminal sentincing case last fall that need immeadiate final resolution.
To some extent, this appears to mirror the present situation regarding Article III judges, except that District and Apellate Court Judges are not forced to accept Senior Judge status, they may elect to take it after a certain age (I want to say 62, but I confess that I didn't pay close attention to that when I worked for the USDC). Making the transition mandatory is not consistent with other Article III judgeships.
Sure, there are some incumbents on the bench who really get under my skin, but I hope they are balanced by the ones who get under the skins of people I disagree with. But annoying people equitably isn't the point of the federal judiciary.
So my vote is no. Then again, I am uncomfortable with the process in most states of electing state judges. Making the executive and legislative branches wrangle over who gets appointments seems to me the best method of balancing out political factors.
In my opinion, the law wouldn't produce any important, long-term political changes. It may be that during this heyday of Republican power, the Court might be packed with conservatives, but that packing would have watered down effects, and would be more easily reversed when (if - I guess they did just pick Howard Dean) Democrats take over again. The whole scheme looks to me more like a Court-packing plan, designed to get ideologically favored judges on the bench more easily, and if the effects thereof are so easily to be reversed, there is no palpable benefit, and therefore no reason to risk tampering with the status quo.
As to Dan Simon's uncomfortably salient point about the politicization of the bench, I think a limited shift of judicial review power away from the judiciary is in order, rather than acknowledging that the third branch is political and giving up on it. If the Congress and President, combined, have a veto power over a Court's determination of unconstitutionality, judicial tyranny is more easily prevented (moreso than, say, reliance on amendments) and the Court might be forced to its intended role of interpreting the law - rather than striking down and eliminating everything it doesn't like.
Secondly, I'm not clear on why this is needed. The NYTimes article suggests that justices serving into old age is not what the framers had in mind, but what's the basis of that? Is there a problem with senile justices serving too long? Or are law professors just bored and want to see more regular change on the court for novelty's sake.
The problem is not that the Court is made up of older men, or of men who grow arrogant with age. The problem is that the Court's power is entirely unchecked. It is rampant. Remember high school, where we all learned about "checks and balances"? Well, those don't exist with respect to the Court anymore. Impeachment of a Justice? Unheard of. Removing certain legal issues from their appellate authority? Forget it. Trying to change a supreme court decision? Apparrently we must amend the Constitution.
I personally favor the Andrew Jackson approach: they've made their decision, let them enforce it. But, of course, even that threat has been removed, as Federal Courts have raised taxes for desegregation purposes, ordered legislatures to convene, and have ordered police as if they were executives.
There is only one constitutional power the Republic lacks: the ability to overturn the court without messing with its fundamental founding charter. A 2/3rds vote of Congress should be sufficient. And to parallel things, allow a 2/3rds vote of the states, absent congressional action. For the Constituion NEVER says that the only way to overturn the Court is by an amendment. If I were President, personally I would ignore decisions that they give out and would dare Congress to impeach me.
30 years ago, everyone revered the United Nations. Now, we know how corrupt it really is. I guarantee that, unless the Court's power is checked, it will be viewed the exact same way in a short time, or even worse. Everyone worries about legislatures running rampant, or messing with the Constitution. What will you do when people believe the Court to be so imperially drunk on their own power that they no longer believe this to be a Federal Republic? You will find resistance, and lawlessness, and the end of Constitutional government. To save the Court, it's current imperial power must be destroyed.
The lawyer should not be allowed to sit on the Supreme Court. The lawyer has only rent seeking and radical proceduralism as the aim of most appellate decisions. Candidates may come from a jury pool. Hat tip to J. Scalia for that good proposal.
The jury pool member is also less likely to get snippy about the Justice $194K salary.
If anyone watched the Scalia-Breyer debate at AU Law school, you were subjected to a series of word searching and grasping for the names of famous cases.
http://www.wcl.american.edu/secle/founders/2005/050113.cfm
We may be receiving the law from the victims of early dementia. The Constitution says life term. Science says Alzheimer's. The Constitution must yield every time.
http://en.wikipedia.org/wiki/Alzheimer%27s_disease
Not to mention signs of early dementia. I am abstaining from any comment on J. Rehnquist's capacities.
http://www.emedicinehealth.com/articles/38738-1.asp
After 60, each Justice should undergo yearly, comprehensive, neuropsychological testing, with scoring and analysis placed on the Web. Drops in performance should result in resignation or in summary impeachment.
Early dementia is the second best theory to lawyer rent seeking in explaining the rapid fire series of egregious error from the SC.
One consequence it won't have is that it won't have the slightest effect upon the internal, governing ideology of the Court, because that ideology is endemic within the legal profession, and most particularly at its elite levels.
It began with Brown v. Board, and has run rampant ever since. The Court, and the legal profession, are victims of the success of Brown, a success that cannot be repeated with any regularity. In any case, the law (or the Constitution) is no longer viewed as a vehicle for the conservation and preservation of society; rather, the law is viewed as an active engine of "social change." This ideology, however it is presented or phrased, controls our law schools, the profession, and -- surprise, surprise -- our courts.
Thus, social policy is now nationalized within a Court of nine old men and women. This was inevitable. With national social policy incorporated into the Court, it is predictable that interested parties will become hysterical at the possibility of deviation from the now established norms (the established norms are expressions of positive "social change" and what right-thinking person could possibly wish to deviate from such a self-validating dogma?).
Change requires a reassessment of the underlying legal presuppositions that create symtpoms such as the hysteria that now surrounds Supreme Court appointments. The only place to begin is with the law schools, and change at that level is unlikely in the extreme. Without such a change, however, the legal profession is flooded each year with new lawyers who have been suitably educated in the social change philosophy of law, usually articulated in hushed tones of reverence as "constitutional rights" (and never really exposed to any competing ideology, unless perhaps incidentally through their professors' condescending sneers at a Scalia dissent).
Second, the term limit proposal will make the Court even more susceptible to responding to prevailing political winds. There would be an increased likelihood that the politics of the Court will be in sync with the politics of Congress. Consensus in Washington is rarely a good thing for the public interest. And the justices would be looking toward there next job, perhaps politics, a la Roy Moore on the Alabama Supreme Court.
If you think the Supreme Court justices are out of touch, this is only a problem if they have too much power. This is going to brand me as a dangerous reactionary, but I also thought that the power of judicial review from Marbury v. Madison was a blatant, extra-constitutional power-grab that upset the delicate balance of power in our three-legged system. Why should the judiciary, the branch most entrenched into its position under the constitution, be the one that is the final arbiter of what is, and what isn't, permissible under the constitution? Why not one of the political branches?
People who think like me lost this argument, oh, about 202 years ago. But if you have a problem with the responsiveness of the life-tenure branch of government, don't make it more like the political branches. Restrict its authority instead, if you are so inclined, and let's keep one branch insulated from the politics of the moment, as best we can.
Also, what happens when the minority party filibusters, especially when the Senior Justice in line is more favorable than the nominee? Maybe I don't quite get how it is supposed to work, but this seems to be a big problem.
Finally, would it reduce the independence of the Court? At the margin, would 18 years on the Court (versus lifetime) make a difference? It could be that ambitious social policy minded judges would be more aggressive in shaping society through their jurisprudence if they only had 18 years to make an impact.
My view is that each judge (not judgeship) should have a fixed term. If the judge is first appointed at 60+ the term is 15. If 45+ then 30 years. If 35+ the term is 40 years. No appointments under 35. No judge can be appointed twice (if you resign you are out with no pension).
Let's review some Supreme Court effects, from a historical perspective. At what level do you teach, I am curious.
The Civil War
25 million crimes a year, 5 million being violent
Internment of Japanese Americans in concentration camps
Massively litigious society, knocking off a percent off our economic growth
Third trimester abortions of viable babies
Legalization of sodomy, the mechanism of transmission of HIV, resulting in the assassination of 40 million people around the world, headed for 100 million.
It goes on, the uninterrupted, rapid fire error rate by these unaccountable geniuses. Let me know, if you would like me to continue.
Have a blessed day.
SC
FDR tried to pack the court because he was unhappy with it limiting his power. I don't think this is a tool we want to open the door to.
"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
"...under such regulations as the Congress shall make". Where is the proposed law precluded?
As to the court packing scheme of Roosevelt, they certainly got the message. There was no more guff from the SC after that, not even a peep.
If this proposal has friends like this, it should give any supporter of it pause.
The Court since 1937 has been a shell of itself, bowing and scraping in deference to the other branches. How subordinate do you want to make it? I can't believe anyone seriously believes that BUT FOR judicial term limits, we would never have had the Civil War, AIDS, crime, or Japanese internment.
If we introduce "rotation in office" to the Supreme Court, it will disrespect the whole judiciary.
Moreover, the process will seem too political: we might be saying that every President ought to have his "turn" to appoint whatever flavor of judge to the Supreme Court he wants. Shouldn't we at least pretend we're searching mainly for the most gifted jurist?
Right now, the SC is the pet of Congress. It does what the Congress cannot face. You will rarely see the leadership of the Congress attack the Court, in contrast to the Executive branch.
Lawyers should disqualify themselves from serving as judges due to an irretrievable conflict of interest. Their interest lays in procedure for lawyer welfare job creation. Accuracy, justice, promoting respect for law are orts from the banquet table of self-dealing.
My biggest accusation is that the lawyer is human. It cannot police itself, nor restrain itself. No one else can either. Gifted lawyers for the bench got all A's by memorizing rules. This is their passion. Unhealthy, hypertrophic proceduralism is not the public interest.