Randy Barnett raises the issue of term limits, which I blogged about a few weeks ago. There are at least three major questions to be answered in deciding whether to endorse the Carrington/Cramton proposal, or any specific proposal on term limits for the Supreme Court:
1. Do you favor 18-year term limits for Supreme Court justices?
Such proposals date back over a decade to (as I recall) at least Greg Easterbrook’s. The Carrington/Cramton proposal from late 2004 and the one that I discussed on CONLAWPROF about 4-5 years ago and the one that Steve Calabresi and Akhil Amar proposed in a 2002 Washington Post op-ed all opt for 18-year term limits.
2. Can this be accomplished by statute by retaining life tenure (with reduced powers and responsibilities) or must such a change be accomplished by a Constitutional Amendment?
Reasonable people can differ on this. The Carrington/Cramton proposal opts for a statute. Early versions of the Calabresi proposal said that either a statute or a Constitutional amendment were possible. The draft that Calabresi and I are rewriting now calls for Constitutional amendment, not a statute, as the wiser course, which was my initial cut when Calabresi first raised the idea of Supreme Court term limits with me back in 2000.
3. Which proposal do you favor?
Even if you are willing to endorse 18-year term limits and think it can be done by statute, rather than by constitutional amendment, there is still the question of which implementation of 18-year term limits works best. I know that Calabresi, when he endorsed the Carrington/Cramton proposal thought that it did much the same thing as the proposal that he and I have been working on for years. But it doesn’t. (Obviously, between the two, he favors our proposal.) The Carrington/Cramton proposal might still be better than the status quo (I don’t know), but I think the version that Steve Calabresi and I developed is better on specifics—which of course one would expect us to think of our own proposal.
I just read the Carrington/Cramton proposal for the first time last night, and I think there are some serious problems with it. I will leave aside for now some problems with their phase-in period (because any proposal will have some potential oddities associated with the phase-in period), and I will focus only on problems with the Carrington/Cramton proposal once it is fully phased in and functioning.
The Carrington/Cramton proposal provides BOTH that “the nine who are junior in commission shall sit regularly on the Court” hearing cases AND that “One Justice or Chief Justice, and only one, shall be appointed during each [2-year] term of Congress.” While under the current law and any scheme that I have considered, the Senate always has the power to delay approving and thereby to delay adding a justice for strategic reasons, under current law and our proposal, the President and the Senate have no power to REMOVE a justice from hearing cases because they want to replace him or her. But under the Carrington/Cramton proposal, they do. And this dispute would happen, not just occasionally, but with almost every appointment.
Imagine if the Carrington/Cramton proposal were fully phased in today and a Democratic appointee and strong liberal were the most senior sitting justice. The Carrington/Cramton proposal provides that “One Justice or Chief Justice, and only one, shall be appointed during each [2-year] term of Congress.” Accordingly, some in the Bush White House would want the new Bush choice confirmed NOW in the first months of the new Congress, so the new justice could bump a sitting Democratic justice off the cases already being heard. The Democrats would respond, “What’s your hurry?” Under the Carrington/Cramton bill, they could wait until late in 2006 to replace the current sitting justice. Suppose that there is a major case coming before the Court late in this term and the more political branches want the senior Justice bumped off the Court that would hear the case. This would seem to me to be highly disadvantageous.
Further, this power to remove sitting justices from hearing cases (including from anticipated specific cases) at the discretion of the other two branches would raise Separation of Powers concerns. Indeed, giving the two non-judicial branches the discretion to set the end of a particular justice’s ability to hear cases routinely would make it particularly inappropriate to try to do so by statute, rather than Constitutional amendment. I don’t think that the Carrington/Cramton proposal can both urge a statutory solution and give the executive and legislative branches the discretion over when during a 2-year window to remove a sitting justice from hearing cases.
Further, suppose that the Bush White House gets its choice through in February or March in the first year of the new Congress. The new justice would obviously supplant the senior justice on cases on which certiorari had not yet been granted, but what about cases on which cert. had been granted, but the cases not yet argued? What about cases argued but not yet decided? As I read the C/C proposal, the new justice would sit immediately, probably bumping the senior justice off cases heard but not decided: “The nine who are junior in commission shall sit regularly on the Court.” At the least, the application of their statute to existing cases is unclear.
I apologize for not making our full specific proposal public now, but (while its logic has been worked out and we have a draft provision) we have not yet run it by those more skilled in legislative drafting. We go for fixed terms of 18 years, each starting and ending in the summers of odd years:
c. The Length of the Terms of Regular Service. There shall be nine staggered full terms of Regular Service on the Supreme Court, each approximately 18 years in length, with terms beginning and ending every two years in odd numbered years. An old term of Regular Service shall end and a new term shall begin on July 1 of each odd numbered year if the Supreme Court has recessed for the summer by that date. Otherwise, the term of Regular Service shall begin and end on the first full day of recess after July 1, but in no event shall the date for beginning and ending a term of Regular Service be later than October 1 of the relevant odd-numbered year.
Calabresi and I expect to make our draft, which has been circulating in a limited form since 2001 or 2002, finally public in mid-March. At that time, I will try to set out what I think are the chief merits and demerits of our Constitutional proposal.
For the reason I set out above, while I strongly favor the idea of 18-year term limits, I do not favor the particular proposal put forward Carrington and Cramton, though with revisions to track more closely our proposal, I would probably favor it.
Comments are closed.