Term limits wouldn’t solve problem of high court politics
The upcoming Supreme Court confirmation hearing for 49-year-old federal appellate judge Neil Gorsuch has, not surprisingly, reinvigorated the decades-old debate about whether the justices on our nation’s highest court should continue to have life tenure.
The data are revealing: Life expectancies are almost double now what they were when the Constitution was written. Federal judges in general, and Supreme Court justices in particular, serve far longer on average than has been true at any point in U.S. history.
And the anecdotes bear the point out, as well: Justice Elena Kagan tells a revealing story about a phone call from Chief Justice John Roberts shortly after her confirmation, in which he congratulated her and said he was looking forward to working with her “for the next 25 years.” Kagan, who was 50 at the time, replied: “Only 25?”
The heart of the affirmative case for term limits has everything to do with the broken politics of the judicial confirmation process. Thus, the theory goes, if the nine justices each serve for a staggered 18-year term (so that one seat opens every two years on schedule), there will be less incentive for justices to time their retirements based upon the party affiliation of the then-current president (and Senate majority), and more predictability and political regularity in tying Supreme Court vacancies to election results — one per House election; two per presidential election; and so on. Moreover, supporters note, term limits at once increase the court’s democratic accountability (ensuring reengagement by the president and the Senate every two years), while decreasing the possibility that justices who are no longer mentally or physically up to the rigors of the job will linger in office.
Color us both thoroughly unconvinced.
One has to see the world through particularly rose-colored glasses to believe that term limits would all of a sudden cause the political branches to stop holding Supreme Court seats hostage to the politics of the moment. If the last year has taught us nothing else, it has taught us that there appears to be no political penalty for the party in control of the Senate to run out the clock on nominees by the president of another party, even when that clock stretches out to a full year.
Why and how would term limits change this behavior?
If anything, term limits would exacerbate the political problem, since there would now be a predictable schedule of when future seats will come open, and thus that much greater of a potential upside for stalling, horse-trading and any number of other political machinations. All of these maneuverings would be designed, like the Senate’s refusal to even consider Merrick Garland’s nomination, to maximize one party’s influence in shaping the court’s future, which would thereby redound to the detriment of the Supreme Court’s public reputation and independence, and, as such, its legitimacy.
Second, from the justices’ perspective, term limits create the very risk that the Constitution’s protections of judicial independence were meant to abate: that, in considering their life after their tenure on the Court, they might be beholden to outside forces in their exercise of the “judicial power of the United States.” After all, even with 18-year terms, Justice Thomas would have had to step down from the Court in 2009 at the age of 61. Unless we also mandate that former justices fully retire, they will inevitably feel pressure to take up other income-generating positions after their time on the court, pressure from which life tenure is supposed to insulate them.
Third, the more we impose constraints on the justices, whether as a matter of statute or constitutional amendment, the more of a precedent we set for further inroads into the justices’ (and the court’s) authority. Although there are important examples to the contrary, the political branches have generally respected and protected the independence and autonomy of the third branch, even (if not especially) when the courts have ruled against them. Imposing term limits would be a powerful, contrary assertion of democratic power at the expense of the counter-majoritarian judiciary.
Finally, a concern shared by those who support term limits: too many judges fail to adhere to the role the Constitution assigns to them of merely interpreting rather than making the law. This would not be remedied by a termlimits constraint at all. Judicial activism over 36 years is still a problem, whether exercised by a single justice or two justices serving in back-to-back 18year appointments. Those who see this kind of judicial role as the true problem should direct their reforms accordingly.
Whether you are a liberal or conservative, a Democrat or a Republican, the odds are that some of your favorite justices served well past 18 years, and, indeed, did some of their most important work in the latter stages of their careers. From Justice Brennan to Justice Scalia, and Chief Justice Marshall to Chief Justice Rehnquist, many of the Court’s most significant rulings have come from Justices well into their third (or fourth) decades of service.
We are by no means indifferent to the concern about Justices whose faculties no longer allow them to carry their weight, but if that’s the problem motivating term limits, there are far easier—and less over inclusive—ways to solve it.
To impose term limits on all Supreme Court Justices would not, in our view, solve the real problem—the seemingly irreversible politicization of nominations—and, indeed, could serve only to further politicize (and, thus, weaken) the Court going forward.