Supreme Court Term Limits:
I've been pondering the merits of proposals to impose 18-year term limits for Supreme Court Justices, and have decided that I am tentatively in favor of the basic idea.
It seems to me that 18-year Supreme Court term limits would have some significant advantages over the current system: 1) it would tend to make the direction of the Supreme Court more reflective of public opinion over time and less contingent on the happenstance of who retires; 2) it would discourage Presidents from nominating younger, less-experienced judges to the Supreme Court with the hope that they'll sit on the Court for 50 years, a change that would likely lead to more experienced and more accomplished jurists being nominated; and 3) at the margins, it might lead to a somewhat more modest Supreme Court in some areas, which at least on balance I think is a good thing (although that of course is a complex question subject to many differing opinions). I'm not persuaded by a number of other arguments made in favor of Supreme Court term limits, but I think these three arguments are significant.
The burden of persuasion is clearly on those making the proposals, as they are recommending a significant change in the judicial structure. But I'm beginning to come around to the view that these proposals make sense.
UDPATE: I've decided to open comments.
It seems to me that 18-year Supreme Court term limits would have some significant advantages over the current system: 1) it would tend to make the direction of the Supreme Court more reflective of public opinion over time and less contingent on the happenstance of who retires; 2) it would discourage Presidents from nominating younger, less-experienced judges to the Supreme Court with the hope that they'll sit on the Court for 50 years, a change that would likely lead to more experienced and more accomplished jurists being nominated; and 3) at the margins, it might lead to a somewhat more modest Supreme Court in some areas, which at least on balance I think is a good thing (although that of course is a complex question subject to many differing opinions). I'm not persuaded by a number of other arguments made in favor of Supreme Court term limits, but I think these three arguments are significant.
The burden of persuasion is clearly on those making the proposals, as they are recommending a significant change in the judicial structure. But I'm beginning to come around to the view that these proposals make sense.
UDPATE: I've decided to open comments.
Too many clauses of the Constitution have been interpreted out of existence by the Supreme Court declining to invoke them or interpret them correctly, often out of a desire to avoid conflict with the President and Congress. This has done a disservice to our legal system and to a lot of people whose individual rights have now been and are being violated.
As for your first point, the Supreme Court already treads lightly with public opinion. The Court often declines to hear a case, or declines to decide it properly if they know a public outcry will happen. Giving the political branches more control, and consequently the judicial branch less independence to do what they think is right, isn't a good thing.
In any event, the argument is silly since it's not unusual for justices to screw over the guys that appointed them not long after they take the oath. This reality ensures that the political branches will continue to favor less-experienced and less-renowned judges (no paper trail) rather than potentially controversial picks.
Had these term limits been in place, Justice Black would have been kicked off in 1955 and Justice Douglas in 1957 (before casting their votes in the Pentagon Papers, New York Times v. Sullivan, and countless other cases); Justice McReynolds in 1932, Justice Van Devanter in 1928, and Justice Brandeis in 1934 (before they reshaped jurisprudence in the New Deal era); Justice Harlan I in 1895 (before he dissented in Plessy v. Ferguson); and of course, Chief Justice Marshall, who would have had to hang up his robes in 1819. That's what we would have lost and the potential we are giving up by adopting a term limit.
JDH
Justice McReynolds was openly anti-semitic and refused to even shake hands or be photographed with Brandeis because he was a Jew.
And according to accounts I've read, Black and Douglas were quite senile toward the end of their terms. From Mark Levin's _Men In Black_:
Hugo Black: Black, appointed by FDR in 1937, had been a member of the KKK in Alabama. He stayed on the Court longer than he should have. In 1969, he suffered a stroke "resulting in a partial loss of memory"... He found it more difficult to concentrate. His short-term memory was waning. He would latch onto some event of long ago and reminisce. In conference he began to stumble badly, becoming tired and confused, and unable to remember which case was being discussed... "Black was paranoid about the future, expressing fears of governmental collapse; Nixon was preparing a military coup, he said. 'There may not be a 1972 election - a dictator might take over.'"
William O. Douglas: FDR appointed Douglas in 1939... "A 1974 stroke incapacitated William O. Douglas at the age of 76 for 2 1/2 months, though he told the press he had been hurt in a fall. Afterwards he slurred his words, couldn't walk, developed fears that people were trying to kill him, thought he was chief justice and spurned pleas that he quit." Things were so bad that the justices themselves took action: " His refusal to step down despite obvious mental and physical problems led colleagues to decide secretly to stop counting his vote in some cases, until he finally quit at the insistence of his wife and friends," some ten months after the stroke.
Douglas's stroke happened in his 35th year on the Court, and it was in the news for about a year. Congress did nothing to impeach him. It must be said that we would have lost some 16 years+ of his jurisprudence while in complete control of his faculties had there been term limits.
This is not a proposal to have justices step down when they lose control of their faculties. This is a proposal for strict term limits -- 18 years and they're done, however competent or brilliant they may or may not be. So cherry-picking stories of senility is only showing one side of the proposal. My point was primarily that we as a country would have lost (and will lose) a lot of great things if such a term limit proposal existed.
From the examples you cite, it appears that a 32-year term limit would be quite acceptable, as I don't think anyone would dispute that any of the three justices were unable to do their job before then.
JDH
The justifications for 18-year terms--that they might make the Supreme Court more "modest" and responsive to public opinion, and presidents less inclined to appoint young, inexperienced justices, in the hope of influencing the Court for 50 years--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.
If it becomes clear that Rhenquist is veryill, he could plan to retire with enough time for the President to nominate (and confirm) a new jurist to the bench. With so many cases being decided 5-4 I dont think having 8 supreme court members for any amount of time is a wise idea.
If someone does not last their 18-year term, we very well could have that. What if it is a slow death, that we can see coming for months or perhaps years, but cannot nominate a successor until they're not there anymore? What if they're kept alive on machines?
I just don't think the system will ever change from the way it is now. Except for maybe that nuclear option in a few more weeks...
We have seen many justices that were appointed by one political party and end up taking the side on issues that said party is opposed to. I think that with all the political pressure that is being applied at the moment we should see the pressing need to keep politics out of it. Also with term limits we will see more nominations and I don't see these nominations getting any less messy.
If you are for the judicial nomination fillibuster you can pretty much kiss it goodbye if you institute judicial term limits. Otherwise I think you would see a standstill unless there was a supermajority in the Senate. I think we are seeing some things we may not like with the current Supreme Court, but I think the system should prevail. Sort of a hard cases shouldn't make bad law argument. Just because we don't like how things are going in this particular instance doesn't mean we should change the underlying system. We don't know all the particular cats we might be letting out of the bag.
For example, some have suggested that the proposal might lead to a more "modest" or more "representative" Court. This, as those posters articulately explain, is certainly a possibility. However, the opposite is also true: giving a Justice a time limit to "get to work" for her side might incentivize extremism in order to reshape the law in one's favor as quickly as possible.
With a term limit of 18 years it might not be such a concern, but imagine a Justice appointed to serve 6 years? There is no time to develop a personal jurisprudential or doctrinal vision, or to be softened by the education of experience. Instead, one is to get in, and make as much "change" as possible before getting out (imagine how our federal statutes would swing ruthlessly in different directions if Congress were comprised of 9 senators).
Will the appointment process manage to neutralize these incentives? I'm not so sure.
And would this proposal be applied to all federal judges? If not, why not? The appeals courts aren't exactly deciding ping pong matches.
Posner seems to agree, but argues that senior status largely takes care of the problem at the circuit level. At retirement age, circuit judges can take senior status — they get the same salary, but a reduced caseload. link
An 18-year term would have been over for Roger Brooke Taney in 1854.
In that respect, Prof. Kerr is absolutely right. And I have yet to read, either here or on Becker-Posner, a good case for what is wrong with the current system. By "a good case" I don't mean simply, "The current system can be abused in X way," but "X, Y, and Z are decisions that have had a materially deleterious effect on the country and that likely would have been different (and better) under a regime with term limits." Until someone makes that showing at a minimum, we can conclude that the current system works and shouldn't be messed with.
* I suspect that the academic community is bored with the stability on the current court and out to get credit for coming up with an idea that actually gets implemented, no matter how misguided the idea might be. Ed Lazarus presented the term limits idea on Findlaw as if he was the only person who'd ever had the idea. Especially nauseating is this recent one that relies on cutesy constitutional interpretation instead of proposing an amendment. I read these proposals and I get the sense that the proponents are more interested in having their names out there than they are in the welfare of the country.
* This looks a bit like Roosevelt's court-packing plan. Maybe this is just another period of frustration. Everybody wait 5-10 years and see if the subject of this decade's Supreme Court rulings still make you angry and wanting to start hurling mountains of paper.
But, if anything can be assumed, it is not that the founders contemplated average years on the bench in 1789 v. the future, but that they were looking very simply at depoliticizing the judiciary as much as possible---as they did with the appointment of senators. There does not seem to have been much panic after the lengthy terms of John Marshall or Roger Taney. If years of service had been foremost in their minds term limits could have been implemented 150 years ago. After all, in 1913 the consitution was amended allowing for the direct election of senators. Did it make the senate better or worse? I don't think any one could say.
I am still not sure on this one. I agree that the system is broken and that institutional change is called for, but I am not very enthusiastic about this one.
I am not sure that making appointments more routine will make them less contentious. The budget is adopted every year, but it continues to be a knockdown drag out fight.
I would like to see some alternatives that would do less violence to our intuitions about judicial independence.
One would be to adopt a manditory retirement age (say 80) and a minimum age of apointment (say 50). Another possible manditory qualification is service as a Court of Appleas judge for a period of time (say 10 years).
Another would be to increase the size of the court dramatically. If there were 30 judges any one appointment would be less important. Such a court should sit in panels that are rotated at random and only sit en banc in rare national emergencies (Bush v Gore).
Why?
Someone please explain the fascination with this idea.
2) Term limits would remove the well educated and most seasonsed judges for no reason. Poor judges will be nominated in either system, by the way, so this won't prevent them from serving on the bench.
3) I'm not sure what you mean by modest here. I'd have to hear more before I could agree/disagree on this point.
"I don't understand this fascination with courts needing to mirror public opinion. Courts aren't supposed to be swayed by the public and what the public wants, they are simply supposed to rule on the law itself.
Someone please explain the fascination with this idea."
The idea is legal realism: while it may be that the Justices "are simply supposed to rule on the law itself," that is not what they actually do. What they do is follow their own personal preferences dressed up as law. Democratic accountability is good because the choice boils down to law that roughly tracks the personal preferences of the public versus law that simply tracks the personal preferences of five people appointed for life.
"Democratic accountability" as you call it will make judges more beholden to politics, not less.
This is a circular statement. American law, yes, even the constitution, itself is premised on the "consent of the governed," i.e., the public "wanting" it.
How would this improve America? Look at the reactionary mentality that seems invariably to develop on Justices who spend decades and decades on the Supreme Court-- they begin to see themselves as indespensible to government and freedom and make decisions clearly biased on their personal feelings, on the justification that they stand as the last wall against the end of the republic: Brennan and Marshall, both of whom became hard-line and ideologically motivated during their last decades on the Court (How many "the sky is falling!" dissents did these two write in their last years?); Blackmun, who explicity appealed to the upcoming presidential election and his old age in his Casey dissent (Defenders of the constitution, unite, and elect Clinton!-- how is that for an impartial judiciary?); McReynolds, who believed FDR was part of a leftist conspiracy in his last years; Douglas, who held on until he was totally incapacitated due to his own paranoia; I could go on and on. Allowing these old men to stay aboard did nothing for our country and hurt the Supreme Court.
With 18-year term limits, I'd also like to see the number of terms capped at one, else the political sway over end-of-term justices might be too much to resist. Some sort of occupational option should exist for termed-out justices.
--JRM
"But the law of the public is no better than the law of personal prefence. It's simply more popular. Just because the people want separate but equal water fountains doesn't make for better law, does it?"
What makes you so sure that five Justices are going to be more enlightened than the public? And if you believe that now, would you have believed that in 1937?
In response to another comment: I've said this elsewhere, I think, but no one is always happy at the outcome of every court case. It has to be that way. The same court that brought us Bush v. Gore also brought the Terri Schiavo rulings. So is it activist for one and not the other?
And what makes you think term limits will limit these "political motivations" that you see? Won't it just encourage a judge to impose more of his view on cases because he has such a limited time to impact the system?
The political leanings of a member of the court come out because of who appointed them. In essence, to have an impartial Supreme Court, we would have to set up a nonpartisan and impartail panel to make these appointments, not a President elected due to his ideology.
I'm not saying I support the idea above, but would it provide any satisfaction to those who cry "activist?" Only until a ruling went against them I think.
The point isn't that the Court would be less political. It's that if the Court is going to be political, it probably makes more sense for the Court's politics to match that of the public. It would be bad if the Court veered way left or way right only because the Justices on one side lived to 100 while the Justices on the other side retired early.
What exactly is the problem Calabresi and Lindgren seek to solve? I know they aren't primarily concerned with the decrepitude of justices. The solution to that is a mandatory retirement age, say somewhere between 70 to 75.
It's also disingenuous to imply that long-lived justices are a phenomenon of modern times unforeseeable to the Founders. That's absurd. Life expectancy at age 50 is greater now than it was in 1789, but there were still plenty of men who lived healthily into their 70s and 80s.
Is it that long-sitting justices are prone to becoming too detached from popular norms? On the current court, for example, Stevens isn't the same jurist as he was in 1975, but who cares? The President nominates judges, not delegates. Kennedy deeply regrets that he was never a serious legal academic and now sees himself as the guiding light and savior of the world's judiciary, but what does that have to do with how long he's been on the court? It has far more to do with all those European summer junkets he's gone on in the past 7 years. I don't think it's legitimate to impose term limits because people might change their minds.
I think it's obvious that their real gripe is wacky substantive due process cases with opinions of the "just making stuff up" variety, especially Roe, Lawrence, and now Roper. These are the cases in which the court merely substitutes its opinion for popular opinion, when popular opinion is divided or opposed, and doesn't really try to pretend otherwise. These are the cases that will make serious and honest legal scholars from the left, right, and center ask what the hell's going on. Okay so they don't like these cases. What does that have to do with length of service, and how will an 18-year term limit help things? It's not like the Justices need to worry about re-appointment.
I hate post-Brown judicial supremacy as much as the next guy, but I see no logic in weak and scattershot attempts to weaken the court's power for no justifiable reason. You don't like what the Supreme Court does? Make a political case for your position. Get a solid majority or plurality on your side. Think about jurisdiction stripping. Dust off court packing. Slash budgets. Threaten constitutional amendments (other ones, that is). Try to figure out what "good behavior" means (I have no idea). If you think the Supreme Court's like the two-year-old child you catch scribbling on the wallpaper with crayons, tell him he's been bad, or start supervising him. Don't take away the cerulean and the burnt sienna while he's not looking and expect him to stop scribbling. in other words, DO something about it. What the hell is an 18-year term limit supposed to accomplish?
The fixation on a 5-4 court split is largely just politics. The perception of the 5-4 split is a selection effect. There are certainly other 5-4 splits that happen on the court, but people have taken to remembering every time a certain 5-4 split occurs.
The court has evolved into a break on the democratic process. That is, it takes about a generation of concurrence before the court is able to give way and break with past tradition in some way. This makes the court a force of conservativism (lowercase and literally) in society. However, this happened well over 200 years ago.
The trouble occurs whenever the court changes over too much at once. This causes a sudden infusion of modern politics. The present situation is not worrisome because the justices are old; it is worrisome because all have served so long already that it wouldn't be surprising to see major turnover in a short few years.
Why is the court so old? It's because Clinton was elected for a second term and Bush's first term was dubious--seriously. Seven of the present justices were appointed by Republican presidents. You can be fairly confident they intend to resign during Republican administrations. Since the civil war, 18 presidents have been Republican (80 yrs), 10 have been Democrats (60 yrs) (* I estimated from my likely imperfect memory especially as several presidents have served only partial terms). So this 7-2 is to be expected...
(2) It strikes me that what a lot of people want is a method to remove judges who are no longer competent to serve, sort of a judicial equivalent of the 25th amendment. However, a strict term limit would often remove judges who are still competent, while leaving an incapacitated judge on the court if he happens to have a stroke before the 18 years are up. (On the other hand, imagine the political brouhaha that would surround trying to remove an incapacitated judge by a partisan Congress.)
I guess that's my whole point. Why does it "make sense" to have the court's politics match the public? And why is it not obvious the problems this could cause? For one, it clears the way for the majority to subjugate the minority whenever it wants. It would serve to speed reactionary and poorly thought out legislation as well.
One of the great checks of the court system as it stands is the legality of law. If the court agreed with public opinion that certain laws should exist, it would open them up to rule more favorably on those laws regardless of their actual merit.
I feel like we've argued in a circle here, because I still don't understand the pros of a public opinion inspired court.
People generally don't question the effects, though they are widely observed, of say, sets of Senate and House terms ending in the same years as each other, and Presidential elections as well. This all happens in regularly repeated cycles.
[snark on]Therefore we get regularly repeated circuses.[snark off]
Why not make all official terms within a given government such that no two have a common divisor? Say, Senate terms would be 5 or 7 years, House 2 or 3 years, Presidential 7, 5, or 3 years (depending on House and Senate), etc.?
This would mean that no two sets of offices would have elections in the same year. The result might make politics much more straightforward. It would certainly cause political strategies to change focus from electing a President and Congressman and Senator in the same year. Specific political issues might become more highly focussed in any given election.
With that in mind, I'll only "vote" for Supreme Court term limits if they are to 17, 19, 23, or any greater prime number of years.
I think you're misstating the question, which is why you think we are running in circles.
You seem to believe that the Justices today are following "the law." For you, the question is whether the justices should follow "the law," or whether they should be swayed by public opinion. If these were the choices, then I would absolutely agree with you: I would much rather the Justices followed "the law" than public opinion.
But unfortunately, I don't think those are our choices. Rather, it seems to be the case that Justices will always follow, or at least be influenced by, their own personal preferences. The issue is whether we should have Justices with personal preferences that more clearly match the public's, or whether we should have Justices with personal preferences out of sync with the public.
In my own state (Michigan), I remember G. Mennen "Soapy" Williams, who won six or seven terms as governor, stepped down just before the state went bankrupt in 1961, and then ran for state chief justice. He spent many years when he ought to have been retired in charge of the court. IIRC, he was still sitting as chief justice when they issued the Poletown ruling (recently overturned): that higher tax revenues were a sufficient "public use" to use eminent domain to clear houses and small businesses away and make room for a large private business.