Are SCOTUS “Term Limits” The Solution?

Maybe it was taken for granted that appointment to the Supreme Court would be the crowning glory on a distinguished legal career, such that the youthful age of a nominee wouldn’t be gamed to seize control for too many decades. Maybe it was the expectation that these geezers wouldn’t live that long anyway. But regardless, life tenure was the choice made in the Constitution for Supreme Court justices.

Is this the source of our current insanity, doing anything and everything to undermine the integrity of nominees to the Court because they’re there for life?

No other major democracy has lifetime appointments to its highest court. Only the United States does, and it creates all kinds of problems.

This is an odd way to raise the question. Some might view the United States as the leader rather than the follower. But how does it create “all kinds of problems”?

For one, our system often does not respect the will of the people. Rather than the Supreme Court’s makeup being determined by elections over many years, it’s based on a combination of those elections and the randomness of how long justices live. Jimmy Carter was unable to make a single nomination to the court because no justice died or retired during his four-year presidency. Richard Nixon filled four seats during his five-and-a-half years as president.

This isn’t exactly an argument, no less a good argument. The Supreme Court is expressly crafted to not respect the will of the people, to not be subject to the tyranny of the majority so that it can protect the rights of the hated, the minority, without fear. That one president may have no opportunity to nominate a justice, while another has multiple nominations, is a consequence of this critical point, that the Court is meant to be immunized from democracy so that the will of the people, say to criminalize abortion or keep “separate but equal” the law, doesn’t prevent the Court from rendering unpopular decisions because the Constitution requires it.

This unfairness born of randomness isn’t the only problem. Given the deep partisan polarization in America, lifetime appointments have also turned confirmations into epic political battles. That’s why the Brett Kavanaugh process feels so momentous. It’s why the Merrick Garland process — or the lack of one — still enrages so many people.

“It makes the stakes too high,” the political scientist Lee Drutman wrote this summer in Vox. “So here’s a simple idea to dial down some of the destructive warfare of the Supreme Court confirmation process: term limits for Supreme Court justices.”

If you were waiting for a rational connection between the argument and the solution to be drawn, you’re out of luck. This is as far as David Leonhardt’s deep thoughts go. The implicit notion is that if every president gets to pick at least two justices, then the pressure is off, as there will always be a new opening two years away.

And so what? These doesn’t change the potential of a president from the horrible other party being elected to succeed another president from the horrible other party, such that the horrible other party gets to load the Court with its horrible choices of justices. This doesn’t mean your good party will command a majority with its new wonderful choice of justice. It takes a majority, kids, and there’s no promise of a majority. Ever.

But most significantly, it would give rise to the new gamesmanship, where the new justice would be chosen to create that possible majority and undo all the terrible things that other horrible party did when it had the majority. It would turn the law into a see saw, where constitutional rights, precedent, stare decisis, would be rationalized into and out of existence when the next crew came aboard.

So term limits are a bad idea? Not necessarily. Gamesmanship happens on the back end as well as the front. Beyond the obvious, that minds and memories start to fail, sometimes imperceptibly and sometimes blatantly, justices hold on to their seats despite knowing they’ve reached their expiration date in order to prevent a horrible president from filling it, or to make sure a good one gets to do so. If they’re still fully capable, then that’s merely a consequence of the system. But if they’re no longer mentally up to the job, sticking around to game the next justice while lacking the ability to serve presents a problem.

But then, this still doesn’t change the fact that term limits won’t ameliorate the outrage and insanity of a potential majority that won’t be to one’s liking. That’s why we hold presidential elections, even if they don’t necessarily turn out the way we think they should or kismet keeps some old geezer alive too long.


19 thoughts on “Are SCOTUS “Term Limits” The Solution?

      1. PseudonymousKid

        Age limits wouldn’t do anything but encourage stacking the Court with young-uns with strong hearts who aren’t risk takers rather than the golden oldies like you say. Term limits would change the game a bit at least.

    1. Kurt

      Age limits are very problematic. Instead, we be more in favor of performance audits – perhaps on all three branches.

      One possibility would be to test the candidate (or incumbent), in several attempts over several days can’t accurately summarize or analyze a masters level thesis in, say, economics or politics, they fail, and are removed from office.

      The problem of course is coming with with objective standards for what constitutes the reasonable thesis, and objective ways to measure the performance of the testee…


    1. SHG Post author

      Term limits would require a constitutional amendment. But Leonhardt says we’re due for one any day now, so it’s all good.

  1. rxc

    This is part of the “Progressive” plan – to change the Constitution (to make “Progress”) in ways that they deem to be more appropriate for a modern society. They were successful with three Amendments 100 years ago, and then they stalled (the last Amendment did not work very well), so they decided to go the route of picking the right justices, which worked for a while, until the wrong people got elected and installed the wrong majority on the court.

  2. Ray

    I think the better solution is for the President to select older nominees. Candidates in their early fifties are too young. 50 is about right for a trial judge. 60 is about right for a circuit judge. 65+ is about right for SCOTUS. The justices should have the self-discipline to voluntarily retire before 80, 75 seems right.

    You would get nominees with enough life and professional experience at 65. You get a good ten years from them. Then they voluntarily retire to make room for new blood. Life tenure means they can’t be interfered with for political reasons, but nothing says they can’t voluntarily retire. Select nominees who aren’t looking to stay on forever, weed out those unwilling to retire. The court can inaugurate its own retirement tradition without running afoul of the constitution. The justices themselves need to understand that going beyond 80 is too long. I’m not an ageist. I think there are many people over 80 who have the presence of mind to continue to work in intellectually demanding fields, but you have to give others their turn. Kind of like a superstar athlete who knows when to retire. You can always turn to academia as a retired justice.

    1. Skink

      I had this dream once. I lived in a cave that was part of a mountain. the mountain was made of chocolate. I love chocolate! I spent all my days eating the mountain from inside the cave. When I awoke, I was greatly disturbed, however, to find my head stuck in my ass.

      Did you ever have a dream like that?

  3. Nemo

    Term limits, so the shitshows like this one happen more frequently, and on a regular basis?




    P.S. And given the Presentist philosophy that is currently en vogue, let’s keep this much in mind: Now that #Metoo holds sway, pretty much any judge who engaged in normal sexual behavior as a teen, back in the day, can now be subjected to archaeological expeditions like the one in the headlines.


  4. Jardinero1

    Aside from the logical disconnect between Drutman’s solution and the purported problem; he also engages in the fallacy of the excluded middle.

    The Constitution leaves the composition of the Court wide open. There are an infinitude of ways to reduce the stakes and the politicization of the nomination and appointment process. My favorite solution is the lottery. Say you keep the Court at nine justices. They serve staggered three year terms. Three drop off every year and three are replaced, drawn by lot from the Circuit Courts.

    With this, you get a very different dynamic. You depoliticize the process and you avoid doctrinal majorities that last for decades.

    1. SHG Post author

      Is there sufficient virtue in stare decisis that in the process of depolitcizing the process, we not destabilize consistency of the law? Too much turnover may well produce wild swings in what conduct is lawful or unconstitutional. Be kinda hard to plan ahead, and kinda risky to trust one’s decisions based on extant law.

      1. Jardinero1

        We can only speculate on the type of decision making which may occur. You suggest that short termers may be more inclined to swing for the fences. But, maybe equally likely, short termers may hedge much more, reaching narrower decisions that move the ball forward or back only a yard at a time. The decision making dynamic among the 179 appellate court judges might also change. They would be observing the actions of this different Supreme Court on the decisions of the appellate courts. Every judge would know that, in any given year, there is a one in 60 chance they may be tapped to serve. Over a twenty five year career, the probability rises to point 28. Legislation in Congress may change in response to the lateral movement of the law. Congress may write more precisely tailored laws and regulations or laws may become more vague.

        1. SHG Post author

          It strikes me as nearly inconceivable that a constant change in personnel is going to result in greater variability in outcome. Either way, before changing a less than optimal situation, it’s worthwhile to be sure you aren’t going to make it worse. It’s not, “what the heck, let’s give it a try and see what happens!”

          1. Jardinero1

            We don’t know whether decisions will be more highly variable or less. I posited that a lottery and rotation would depoliticize the process and end doctrinal majorities that occur on the court. By doctrinal majorities, I refer to the blocks of justices who can be predicted to rule the same way way, every time, on various aspects of law being considered: the 2nd amendment, abortion, copyright, bankruptcy law, defendant rights, et al. With regard to your second statement, there is no way anyone can know, ex-ante, whether any given policy prescription is going to help or hurt. Every policy change truly is, “what the heck, let’s give it a try.”

Comments are closed.