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Term Limiting Supreme Court Justices:
Lately I was asked to endorse the following proposal by law professors Paul D. Carrington and Roger C. Cramton to limit the terms of Supreme Court Justices:

THE SUPREME COURT RENEWAL ACT OF 2005

Congress should enact the following as section 1 of Title 28 of the United States Code:

(a) The Supreme Court shall be a Court of nine Justices, one of whom shall be appointed as Chief Justice, and any six of whom shall constitute a quorum.

(b) One Justice or Chief Justice, and only one, shall be appointed during each term of Congress, unless during that term an appointment is required by Subsection (c). If an appointment under this Subsection results in the availability of more than nine Justices, the nine who are junior in commission shall sit regularly on the Court. Justices who are not among the nine junior in commission shall become Senior Justices who shall participate in the Court's authority to adopt procedural rules and perform judicial duties in their respective circuits or as otherwise designated by the Chief Justice.

(c) If a vacancy occurs among the nine sitting Justices, the Chief Justice shall fill any temporary vacancy by recalling Senior Justices in reverse order of seniority. If no Senior Justice is available, a new Justice or Chief Justice shall be appointed and considered as the Justice required to be appointed during that term of Congress. If more than one such vacancy arises, any additional appointment will be considered as the Justice required to be appointed during the next term of Congress for which no appointment has yet been made.

(d) If recusal or temporary disability prevents a sitting Justice from participating in a case being heard on the merits, the Chief Justice shall recall Senior Justices in reverse order of seniority to provide a nine-member Court in any such case.

(e) Justices sitting on the Court at the time of this enactment shall be permitted to sit regularly on the Court until their retirement, death, removal or voluntary acceptance of status as a Senior Justice.
As explain by its authors, this proposal would have the effect of limiting the term of "active" justices to approximately 18 years:
The result is that all Justices appointed to the Court in the future would serve as the nine deliberating and deciding members for a period of about eighteen years (depending upon the interval between the initial appointment and the promptness of the appointment process eighteen years later). However, the Act does not restrict the lifetime tenure of the Article III judges appointed as a Justice or Chief Justice of the Supreme Court. Instead, it defines the regular membership of the Court as consisting of the nine most recently appointed Justices. Some of the Senior Justices who no longer participate regularly in the Court's decisional work may be called upon to provide a nine-member Court when that is necessary (see Subsection (d)). And all of them continue to retain the title of "Justice of the Supreme Court" and to exercise the judicial power of the United States as judges of a circuit court, a district court, or some other Article III court. In short, the Act defines the "office" of a Supreme Court "judge" in a new way. This feature distinguishes the Act from statutory proposals to place age limits or fixed terms of service on Supreme Court Justices. Senior Justices will continue to have lifetime tenure as Article III judges in accordance with the "good behavior" clause of Section 3 of Article III.
This proposal has already been endorsed by law professors representing a wide political spectrum. They include: Vickram D. Amar, Jack M. Balkin, Steven G. Calabresi, Walter E. Dellinger III, Richard A. Epstein, John H. Garvey, Lino A. Graglia, Michael Heise, Yale Kamisar, and Sanford Levinson.

I tend to favor term limits--what the Founders called "rotation in office"--for elected officials, but this proposal gave me pause. I am not as unhappy with the current system of judicial appointments as some on the left and right. Still, this proposal seems to have some merits in that it regularizes the process of adding new members to the court. (I cannot find the actual proposal on line so you can read the justifications offered by its authors, but you can read a New York Times story on the proposal here. If someone finds a link to the full proposal, I will add it here.)

So far, I have not signed on, but was curious to hear thoughtful reader reaction. So I have activated comments. I am particularly interested in hearing potential problems with the proposal, as its purported benefits are more obvious. However, feel free to voice your support as well as opposition. But reasons will be more persuasive to me than expressed preferences.

Update: On comments, Crime and Federalism Blog notes this online Legal Affairs Debate last week between Norman Ornstein of AEI and my BU colleague Ward Farnsworth. Readers may want to read it before adding their 2 cents.

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