Michael Maiello's picture

    Term Limits For Supreme Court Justices

    When it comes to Social Security and Medicare, there's no shortage of pundits willing to tell me that the promises the government made to us in the past can no longer be kept because people are living longer, healthier lives than they used to. These arguments tend to be bogus because they ignore the fact that lifespans have increased, in part, because infant mortality is down.

    But there's one group of people who are certainly living longer, healthier lives than they were back when the nation was founded -- the influential, rich and powerful justices of the Supreme Court of the United States, who have unfettered access to the best health care in the world along with jobs that ain't exactly coal mining when it comes to the toll taken on the body.  This is why in my Daily column today, I argue for term limits on Supreme Court justices.

    The average tenure for Supreme Court justices has climbed to 26 years, from 15 before 1970.  John Roberts, a young man, could preside over the court for four decades or more, if he proves to have John Paul Stephens-like stamina.

    I get that we want to insulate the justices from politics, but we also want to insulate the Governors of the Federal Reserve system from politics and they serve limited terms.  Ben Bernanke even had to argue for his own reappointment.  It's not as if he's lost control of the Fed to the whims of populist outrage as a result.

    Besides, the Justices are anything but "removed from politics," as Antonin Scalia's gleeful grilling of the Administration's lawyer in the ACA case reveals.

    More frequent appointments will change the makeup of the court more often and stop decade-long swings in political preference.  It would moderate the court the way frequent elections moderates the presidency.

    Lifetime judicial appointments are not the norm, by the way, in other developed countries with functioning democracies.  But, hey, neither is the frequent use of the death penalty and a lack of access to affordable health care, so maybe we just want to continue to let our freak flag fly?

    Another thing... we should de-professionalize the court.  The idea that somebody should have been a federal judge or a career judge to sit on the high court is ridiculous and something the Founders never intended.  Why not fill the court with some legal professionals but also some public intellectuals, former governors or even scientists or ethicists?

    I hate to burst everybody's bubble but the Constitution is a short document, written in plain language.  It's something that any interested citizen can read and grapple with.  It doesn't even take long to read.  The Cato Institute once gave me a copy of the Constitution, with all amendments, that can fit in your back pocket!  A lifetime of devotion to the study of this document might well obfuscate more than it clarifies.  The way I see it, most of the big issues in front of the court are not so much Constitutionally complex as they are ethically complex.  Richard Rorty might have a lot more useful things to say than Roberts in any event.  Does anyone really believe that Clarence Thomas is the height of the American intellect?

    In short, I think we can do a much better job with the court than we've been doing.



    A few quibbles:

    1. Term limits are probably a good idea, but it might require a Constitutional amendment (then again, it might not). Not likely to happen any time soon.
    2. It seems to me that serving on the Supreme Court requires far more legal knowledge than just that of the Constitution. Sound ruling is based on legal precedent, and there's an awful lot of precedent to be aware of.

    I definitely wouldn't claim that it's likely.  But so far as point 2 goes, it isn't as if the justice has to have knowledge of every relevant precedent at their finger tips.  Any smart person can hire a competent research staff.  But, consider this... an actual philosopher, as opposed to a legal professional, might be better equipped to say when precedent was stupid.

    Okay, well, first I have to admit that several of the current set of Justices show that having a strong legal background isn't enough, that's for sure. However, I feel like saying they can just "hire a competent research staff" is like hiring a philosopher to build my house since he'll just be using subcontractors anyway. I think you might be underestimating how much skill is required, but maybe I'm overestimating it. I think you're slightly more in touch with things legal than I am, but I'm cautious of "field chauvinism". Finally, a philosopher? You might as well suggest an economist! Clearly, what we need are computer scientists and astrophysicists on the Supreme Court! wink


    You make good points here as well as at The Daily.

    Reminds me of an essay written by some Cornell Law School chap 7 years ago.


    Professor Cramton (along with a host of other intellectuals) suggested limits of 18 years so that every President had an opportunity to appoint someone every two years.

    The Justice would not be forced to resign, he/she would just be put on a different judicial panel.

    It seems to me that decades ago some intellectuals of a sort thought there might be a way to limit the term of a Justice by contract (of sorts) prior to appointment!

    Otherwise, maybe Congress could step in and enact a law whereby no one under the age of 75 could be appointed.

    Every ten years the justices should be forced to fight to the death until only three are left. Then, lower court judges will fight to the death to fill the four empty places.



    I hereby render unto Donal the Dayly Line of the Day Award for this here Dagblog Site; given to all of him from all of me! ha

    Why have any personal terms at all.  Why not select judges for courts sessions and cases by sortition (like juries) from a pool of qualified candidates who want to be picked (unlike most juries).  Any controversial or otherwise landmark cases might need a bit more filtering.

    Not that there isn't merit to Donal's suggestion as well, but 

    Not only do I endorse term limits, but also age limits, as well as a mandate put in place that all medical records be annually reviewed - if diagnosis of dementia or other like illnesses are advised, they must resign.  


    I can see a sort of Survivor reality show, where each year all nine go thru immunity challenges, etc, and then one gets vote off.


    Nine judges enter, eight judges leave...

    There's several outfits from  Mad Max that would really pimp Thomas out proper...

    Perhaps you should pick up a copy of The Federalist Papers. They were written by Hamilton, Madison and Jay to argue why the Constitution was necessary and a better document than the Articles of Confederation. Think of it as the owners manual for the Constitution. They go into depth explaining the why that the Constitution just touches on. I'm slowly reading it and all I've gather is they were using a lot of history of failures to illustrate why the Constitution would float in a sea of turmoil. There may be some grain of rationale why the Court has unlimited terms buried in those essays.

    Term limits, sure.

    De-professionalizing the court, I'm not so sure about. It's not the complexity that concerns so much as respect for legal practice and commitment to legal norms. The current court is certainly politicized, but the judges are unlikely to openly flout precedent or ignore the opinion of the legal establishment. Their background acts as a sort of damper on radical rulings.

    Why would we want to dampen radical rules? Don't think about the justices you would like to see. Think about the ones you would not like to see. The Harriet Myers case offers an excellent example. The ABA's rejecting of her professional qualifications helped prevented a Bush toady from ascending to the highest bench. Another unqualified judge I worry about is a guy like Roy Moore, who is about to return to Alabama's highest court courtesy of the voters. As long the country values legal acumen and expertise in our justices, we can at least weed out the worst of the lot.

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