In the wake of the confirmation of Elena Kagan to the Supreme Court, political commentators have been expressing a bit of frustration about polarization within the court and polarization in the nomination process. One proposal that’s been floating around is to replace lifetime appointments by fixed terms, perhaps twelve or eighteen years. This would enforce a regular schedule of replacements, instead of the current system in which eighty-something judges have an incentive to hang on as long as possible so as to time their retirements to be during the administration of a politically-compatible president.
A couple weeks ago at the sister blog, John Sides discussed some recent research that was relevant to the judicial term limits proposal. Political scientists Justin Crowe and Chris Karpowitz analyzed the historical record or Supreme Court terms and found that long terms of twenty years or more have been happening since the early years of the court. Yes, there is less turnover than there used to be, but that is a product not so much of longer terms at the high end but of fewer judges serving very short terms.
Sides used this and other arguments to conclude that term limits for Supreme Court judges would not have much effect.
I saw John’s blog and posted a disagreement, arguing that term limits could indeed have a large effect, and that, as political scientists, we shouldn’t be so fast to dismiss proposed reforms.
John then replied to my arguments, again bringing in more research.
And then I replied to that.
Finally,
Crowe and Karpowitz chimed in with their thoughts: “Eighteen-year term limits may be a good idea for other reasons, but getting at the source of the recent increase in average tenure is not one of them.” I still disagree, but Crowe, Karpowitz, and Sides do make a larger point that is reasonable, which is to push the discussion toward the goals of the proposed reforms rather than to treat shorter terms as an end in themselves.
Beyond everything else, I’d hope that term limits would remove some of the mystique of the Supreme Court, starting with the idea that they’re called “justices” rather than simply “judges,” which is what they are. It’s almost as if they are considered to be the personification of justice.
I agree with Crowe and Karpowitz that these problems are not new. Roger Taney was 80 years old when he ruled on the Dred Scott case, which is, I believe, the consensus for the worst call in Supreme Court history. The case came on his 22nd year on the Court.
I would point out that here in New York the members of the State's highest court, the Court of Appeals are called "judges." But New York's lowest court of universal jurisdiction is called the "Supreme Court" and its judges are called "justices." Thus the decisions of justices in New York are appealed to judges, whereas in the Federal system the decisions of judges are appealed to justices.
I think I've invented a new rule in political science. The rule is that if the United States is the only country that does something a certain way, and other countries adopted their version of the instution later, the unique way the United States is doing it is —-ed up. The U.S. was so successful for such a long period that all sorts of flawed institutions were allowed to continue without reform, eventually undermining that success.
I'm not sure you can say that fixed turns retrospectively wouldn't have had an effect, unless you define what the fixed term proposal is. If the fixed term was thirty years, no that wouldn't have had an effect. If it was three years, that would have had a big effect and so on.
At first, Supreme Court justices were required to ride circut, at a time when the only way to get around was to literally ride bad roads with a horse. The institution had less prestige when it started out. It used to be unexeptional for justices to resign to run for elected office, or to take executive branch appointments. The last time this happened was 1965. Taney himself was put on the Court as a consolation pick once the Senate wouldn't confirm him as a cabinet appointment. The job today may be the best job in Washington for an elderly person.
So in the early years of the Court there were effective term limits just because the job was not viewed as something you necessarily wanted to do for a long time. This has changed.
Term limited justices would have also changed the composition of the Court, due to less bitter confirmation battles (the losing side with fixed terms knows there will be a new vacancy in 2-3 years), and more willingness to put older justices on the bench. But the confirmation battles and the drive to put 40 something judges on the bench are also relatively recent.
Also, the most common term limits proposals envision 18 years, I think driven by the Court being made up of 9 justices. But the number of justices is not set in the Constitution. If 18 years is not a good number, you can change the number of justices, I am partial to 15 year terms for 15 justices myself.