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Term Limits For Supreme Court Justices

by Michael Maiello 4/11/2012 - 10:33 am   |

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.
by Verified Atheist 4/11/2012 - 11:15 am

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.

by Michael Maiello 4/11/2012 - 11:18 am (re: Verified Atheist)

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

by Verified Atheist 4/11/2012 - 11:24 am (re: destor23)

 

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.

http://www.news.cornell.edu/Chronicle/05/1.27.05/Cramton_supremes.html

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.

by Richard Day 4/11/2012 - 12:41 pm

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.

by Donal 4/11/2012 - 1:14 pm

 

 

by Michael Maiello 4/11/2012 - 1:28 pm (re: Donal)

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

by Richard Day 4/11/2012 - 3:43 pm (re: Donal)

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 

by EmmaZahn 4/11/2012 - 1:50 pm

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.  

 

by Aunt Sam 4/11/2012 - 1:52 pm

diagnosis of dementia

When it's time for gramps to hang up the keys...

​

by jollyroger 4/11/2012 - 2:05 pm (re: Aunt Sam)

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...

by jollyroger 4/11/2012 - 2:01 pm

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

by jollyroger 4/11/2012 - 2:02 pm (re: jollyroger)

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.

by Beetlejuice 4/11/2012 - 7:49 pm

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.

by Michael Wolraich 4/11/2012 - 7:57 pm

You are exalting plain language and Richard Rorty in the same essay.

It is an irony to me that from a left perspective, you are questioning judicial independence.

I may have to write in response to this, I found disturbing the degree of acquiescence in your thesis.  Actually, I first wrote a satiric comment about how only people who are not captives of their sources and who are fairly ignorant of markets should be allowed to do your job, but I thought wishing Richard Rorty or Governor Blagojevich on The Daily was so self-evidently farcical it might be taken askance.

Yes, I may have to respond to this.  Your thesis is starkly at odds with the Founders' conception of the independence of the judiciary, no way around it.

by Articleman 4/12/2012 - 12:45 am

Well I was only kidding about the ten years part. They should fight to the death, though.

by Donal 4/12/2012 - 8:16 am (re: Articleman)

Funny that you'd bring up my job as I don't consider myself "expert" in anything.  I'm just a writer.

by Michael Maiello 4/12/2012 - 8:57 am (re: Articleman)

A-man, while I agree with your opinion, I'm not so sure about your history. Destor is correct that the Founders never intended "that somebody should have been a federal judge or a career judge to sit on the high court." Indeed, more than a third of Supreme Court justices had no judicial experience prior to their appointments, from John Marshall all the way up to William Rehnquist.

PS I wryly add that John Adams' midnight judges and Jefferson's impeachment campaign against Samuel Chase belie the Founders' commitment to judicial independence.

by Michael Wolraich 4/12/2012 - 10:30 am (re: Articleman)

Life tenure is a design feature that is there for independence.  Professionalism is a different and unrelated question.

by Articleman 4/12/2012 - 10:50 am (re: Genghis)

But there's also an issue of life expectancy.  I doubt the founders thought it was likely that some guy like John Roberts could run the court for 3-4 decades, which is now plausible.

by Michael Maiello 4/12/2012 - 11:43 am (re: Articleman)

Destor, you're conflating life expectancy at birth with the expected lifespan of a middle-aged judge. The latter hasn't changed so much. In fact, the record-holder for longest serving chief justice is John Marshall, who served from 1801 until he died in 1835 at the ripe age of 79. He's also the fourth longest-serving Supreme Court justice overall.

For this reason and a number of others, I think that you're on thin ground when it comes to Founders' intent. That doesn't mean they were right, but you'd need a constitutional amendment to get around it.

On the other hand, here's a potential workaround that would not require an amendment:

http://www.nytimes.com/2012/04/10/opinion/bring-the-justices-back-to-ear...

by Michael Wolraich 4/12/2012 - 12:10 pm (re: destor23)

So they've done nothing to extend the latter years of life, have they?  That's it, somebody get me a cigarette covered in butter to go with this ridiculous salad I just ordered.

by Michael Maiello 4/12/2012 - 12:20 pm (re: Genghis)

Here you go.

by tmccarthy0 4/12/2012 - 12:26 pm (re: destor23)

With a bourbon sidecar, no less!

by Michael Maiello 4/12/2012 - 12:53 pm (re: tmccarthy0)

Per this PDF: since 1950, the life expectancy of a man aged 50 has gone from 23 years (i.e., expected to die at 73) to 29 years. I'm not sure what it was in the 18th century, but I'm guessing it was far less. However, I suspect the life expectancy of someone well connected enough to become a Justice has changed significantly less, since poverty and race were more tightly linked to life expectancy in the '50s.

by Verified Atheist 4/12/2012 - 12:39 pm (re: destor23)

Still pretty linked.

But to the main point, this one goes back a bit further and breaks out race and gender. Here's the life expectancy for a fifty-year-old white male:

1850: 21.6

1900: 20.76 (got lower, interestingly)

1950: 22.83 (not much higher than 1850)

2004: 29.1 (modern medicine's life sustaining technology kicks in)

And if you want to go really far back, check out the Romans.

So basically, we're talking about an expected lifespan increase from about 71 to about 79 for middle-aged justices. Substantial but not dramatic.

by Michael Wolraich 4/12/2012 - 1:25 pm (re: Verified Atheist)

It would, however, almost definitely require a majority in both houses of Congress. Also, I'm not sure if I'm keen on the every 2 years a new Justice is appointed bit. That would mean that during the Reagan/Bush I era, 6 (out of 9 "deciding") Justices would have been appointed by them. Do you think that Roe v. Wade would've survived? It might have, but it wouldn't have surprised me if it had been reversed.

No, the more I think about it, the more I think the long tenure of the Justices brings a stability and deliberation that might be better than its alternatives. (Keep in mind, that "every 2 years" would come out to an 18-year tenure for being in the "bullpen", which isn't exactly short. I don't know why I'm bothered by it when it's put like that, however.)

by Verified Atheist 4/12/2012 - 12:27 pm (re: Genghis)

The average tenure of SCOTUS justices who retired after 1970 is 26 years, up from 15 years before 1970. So pre-1970, a justice retired on average every 1.66 years (at least since there have been 9 of 'em). Post-1970, a justice retires on average every 2.89 years. So the 2-year appointment would not be all that different in the long run.

One thing that I like about the model is that it takes some of the randomness out it, so those stubborn long-lived justices can't hang in there and wait for a favorable president.

by Michael Wolraich 4/12/2012 - 1:51 pm (re: Verified Atheist)

I've got truthiness on my side. (I.e., my argument sounds great until one muddies it up with numbers and facts.)

When I think about it logically and unemotionally, I think perhaps you're right. Re-visiting what bothered me, but this time with numbers: Reagan appointed 3 Justices, but would've been able to appoint 4 under the every-2-years formula. GHW Bush got his 2. So, for the combo, it's the difference between 6 appointments and 5, with 5 already being enough to overturn Roe v. Wade if they had so desired. Of course, back then Justices seemed capable of surprising those who appointed them a bit more, or the selection process was less ideological or something. (How else can one explain the 7-2 imbalance during the Clinton years and then the Bush years not leading to even more conservative rulings than the ones we got?)

by Verified Atheist 4/12/2012 - 2:32 pm (re: Genghis)

Guys, I'm learning a lot watching you two debate but the real issue is this.  Scalia will live forever if not exposed to direct sunlight and his magic powers also keep Thomas alive as a consigliere and toady.  That's the problem.  It's all in Bram Stoker.

by Michael Maiello 4/12/2012 - 3:06 pm (re: Verified Atheist)

You underestimate the powers of the Ruth the Vampire Killer.

by Michael Wolraich 4/12/2012 - 3:26 pm (re: destor23)

Numbers are dangerous. I've heard they cause autism.

Of course, back then Justices seemed capable of surprising those who appointed them a bit more, or the selection process was less ideological or something.

There's the rub. The real problem with SCOTUS has absolutely nothing to do with the ages of the judges or the lengths of their tenures. The reason that people across the political spectrum from Rick Perry to Destor want terms limits is because they want the judges they dislike to retire already.

But term limits won't solve the problem, and they might make it worse. The real problem is that SCOTUS has become very politicized. It has happened periodically in the country's history. It tends to mirror ideological differences within the populace rather structural issues in the appointment process.

In short, the Supreme Court is bitterly divided for the same reason that Congress is bitterly divided: because Americans are bitterly divided. 

by Michael Wolraich 4/12/2012 - 3:40 pm (re: Verified Atheist)

Then I misunderstood you. I assumed it was obvious that life tenure was the founder's intent, since the Constitution is fairly explicit on that.

by Michael Wolraich 4/12/2012 - 11:59 am (re: Articleman)

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