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NY Times Renews Discussion of Supreme Court Term Limits.--

Linda Greenhouse has an article in today's New York Times that brings up proposals for an 18-year limit on Supreme Court tenure. She reports some of my data on Court tenure and mentions Steven Calabresi's and my article on the subject (which can be downloaded from this SSRN page).

Greenhouse also quotes Sandy Levinson, who was one of the few law professors who called for CJ Rehnquist to resign in 2005:

Chief Justice William H. Rehnquist died over Labor Day weekend in 2005, 10 months after receiving a diagnosis of an invariably fatal form of thyroid cancer. During most of that time, he had been widely expected to announce a decision to retire, but he kept even most colleagues in the dark about his condition and plans until declaring six weeks before his death that he intended to stay on.

Whether he displayed brave optimism or "a degree of egoistic narcissism," as Prof. Sanford Levinson of the University of Texas Law School asserted in a recent book, is open to debate. With the protection of life tenure, the decision to play through was, in any event, completely the chief justice's own.

But it is beyond debate that interest in re-examining the wisdom of the Constitution's grant of life tenure to Supreme Court justices, a lively topic at the time of Chief Justice Rehnquist's illness and death, has continued to grow.

The interest, admittedly, remains largely limited to the corridors of law schools and university political science departments. No member of Congress or candidate for office has taken up the call. But the range of scholars across the ideological spectrum who are pushing or endorsing various proposals for restricting justices' tenure is impressive, numbering in the dozens of leading conservatives and liberals. . . .

One reason for the growing consensus is that the practical meaning of life tenure has changed dramatically in recent years. Between 1789 and 1970, according to statistics in an article by Profs. Steven G. Calabresi and James Lindgren of Northwestern University Law School, Supreme Court justices served an average of just under 15 years, with vacancies on the court occurring about once every 2 years.

Since 1970, justices have served nearly twice as long, more than 26 years, with the average interval between vacancies stretching to more than 3 years. . . .

One [reason offered for limits] is that widely spaced departures (there were none from 1994 to 2005) tend to make each vacancy an earthshaking event, while predictably regular vacancies would lower the temperature. Another is that the broadly perceived tendency of justices to time their retirements for political reasons increases public cynicism about the court.

A third reason is that fixed terms would erase the political premium on appointing justices at young ages. Republicans, especially, prize youth and the long Supreme Court tenure it promises. The average age of the last five Republican appointees was 50; the last five justices named by Democratic presidents were, on average, 56%.

Few other legal systems have taken American-style life tenure as a model. Most countries place term or age limits on their high-court judges, as do 49 states (all but Rhode Island). That fact "demonstrates that there is not the slightest need to grant life tenure in order to guarantee an independent judiciary," Professor Levinson of Texas wrote last year in his book "Our Undemocratic Constitution."

But not everyone is convinced. Prof. Vicki C. Jackson of the Georgetown University Law Center, a leading authority on the federal judiciary, warned in an article this year that rather than cooling the politics of Supreme Court confirmations, fixed terms might simply "turn an episodic fracas into a regular one."

For additional data and arguments, see our paper.

FantasiaWHT:
I like that each branch has different term limits. One has life. One has 4 or 8 years, subject to relection. The other has an unlimited term, subject to re-election.

I'd rather see a single term for the president (at a longer 6 years rather than 4), but that's a different argument for elsewhere.
9.10.2007 9:57pm
Randy R. (mail):
The one I like is this: since there are nine justices, let them serve for 18 years , but stagger their terms. This way, each justice comes up for renewal every other year. Since 18 years is beyond the average, each judge is on for almost life. The judge can be renewed, of course, but it wouldn't be required.

This way, every president is guaranteed to appoint or renew a justice at least twice in a term.

If every president gets two shots at the Supreme Court, perhaps more (if anyone dies or steps down before their 18 year term), then he gets more. That's a much higher turnover than is current, which means that if you don't like this terms make-up, just wait a few years and it'll change.

So I think that the stakes will lessen greatly and it won't be so important. It's the winner-take-all approach of today that makes things so much more heated and contentious.
9.10.2007 10:06pm
Jimmy S (mail):
That's a much higher turnover than is current, which means that if you don't like this terms make-up, just wait a few years and it'll change.


So much for stare decisis!
9.10.2007 10:11pm
Dave N (mail):
Given the hyperpartisanship of Supreme Court confirmation battles when there was a perception that there would be an ideological change on the Court (Thomas, Alito), I could foresee Presidential Candidate A saying, "Vote for me, I will replace Justice Scalia" and Candidate B saying, "Vote for me, I will replace Justice Stevens."

Both seem rather unseemly.
9.10.2007 10:21pm
Brian K (mail):
Most countries place term or age limits on their high-court judges, as do 49 states (all but Rhode Island). That fact "demonstrates that there is not the slightest need to grant life tenure in order to guarantee an independent judiciary

not exactly. it only proves that you can have a judiciary. to prove independence would take a lot more work and an analysis of judicial opinions over the lifetime of each judge. (for example, does the opinions become more conservative/liberal depending on which party is in power?)

I think the fact that we have different term lengths for the house, the senate and the executive to ensure varying amounts of accountability to the electorate is a strong argument against having anything less than life-long appointments. you can't have an independent judiciary otherwise as you can't ensure that judges won't alter there opinions to go counter to current public opinion. for example, one of the reasons i constantly hear for why sentencing is out of whack is that judges don't want to appear to be soft on crime so that they can get reelected.

That said, if we were to institute limits they would need to long, at least greater than 16 years to ensure that the entire judiciary is not elected by a single political party, and it would have to have a single term limit. a one shot and your out type deal. this would ensure that judges don't alter their voter behavior towards the end of the term to ensure reelection/renomination.
9.10.2007 10:26pm
Daniel Chapman (mail):
Is it really that "Republicans, especially, prize youth and the long Supreme Court tenure it promises" or is it that Democrats have only appointed two Justices in what? the last 30 years? I'd say it's more a function of the times we live in that both parties "prize youth and the long tenure it promises."
9.10.2007 10:38pm
wm13:
As you say, interest in this topic appears to be entirely confined to law professors. As someone (I forget who) said about the Restatement of Property, why on earth should Americans be interested in the views of people who think the big political choice is between Al Gore on the right and Ralph Nader on the left?
9.10.2007 10:58pm
Tony Tutins (mail):
The Supreme Court comprises a stabilizing force against the passions of the day. Gay rights/no gay rights; abortions/no abortions; whatever it is, the Supreme Court represents evolution, not revolution. They are the anti-democratic force that prevents the tyranny of the majority. And there's little that can be done about that right now -- there are no lame duck justices, because they aren't going anywhere unless and until they decide to. Moreover, unlike elected Supreme Court Justices, they don't have to worry about pandering to the masses -- they can follow their consciences and their good judgment.

Speaking of which, I remember when I was a kid and a rich PI lawyer spent a chunk of his fortune campaigning his way onto the Illinois SC. I really don't want to see that happen on the USSC.

As a side note, I think the no-third-term amendment was the stupidest thing the Republicans ever did, because the President is a lame duck from the day of his reelection. Moreover, had Ike run for a third term, he likely would have won. Having preached against the military-industrial complex, Ike was smart enough to keep us from getting enmeshed in Viet Nam. With only nominal U.S. support, South Viet Nam would have given up in 1967.
Staying in this alternate universe for a bit: Tension between Ike and Nixon would have meant a different VP candidate in 1960, who would have succeeded Ike in 64. Nixon would still have run for governor of California and lost to Pat Brown, causing him to pout and languish in obscurity. Ready for a change of party, the country would have elected the moderate Humphrey in 68 and again in 72. LBJ would be remembered for having led the Civil Rights revolution in the Senate, not for the war.
9.10.2007 11:11pm
11th Hour:
One concern with term limits is how the approach of the end of a term can change behavior. History is full of examples of Presidents signing eleventh hour executive orders and granting last-minute pardons. We also have examples of how Congressmen who have announced an intention to not run for re-election can suddenly become more or less partisan. A Supreme Court Justice who sees the end of his influence over the law coming near could be inclined to make more radical decisions to increase the chances of a more permanent effect on the law.
9.10.2007 11:19pm
Jurisprudential (mail):
FYI: the most recent issue of the Harvard Journal of Law and Public Policy includes a response to the Calabresi/Lindgren article that disputes some of its empirical claims.
9.10.2007 11:47pm
Gaius Marius:
Term limits in the Judiciary are acceptable only so long as term limits are imposed on the U.S. Senate.
9.10.2007 11:52pm
Truth Seeker:
If Hillary becomes president then Supreme Court term limits sound like a good idea, but if a Republican wins the presidency then it's a really bad idea.
9.11.2007 12:04am
TJIT (mail):
Because of gerrymandering and campaign finance incumbent protection laws, most congressmen and senators have an effective life term.

I would like to see them face a reasonable chance of electoral competition before we talk about term limits on the supreme court.
9.11.2007 12:15am
Dilan Esper (mail) (www):
As a liberal, I am not looking forward to 30 years of a John Roberts court. Nonetheless, you don't get to change the rules just because you lose some presidential elections. There's no justification for term limits.
9.11.2007 12:29am
Brian K (mail):
As a liberal, I am not looking forward to 30 years of a John Roberts court. Nonetheless, you don't get to change the rules just because you lose some presidential elections. There's no justification for term limits.

unless the limit is made retroactive to the day the judge began serving on the court
9.11.2007 12:33am
Tony Tutins (mail):
Because of gerrymandering and campaign finance incumbent protection laws, most congressmen and senators have an effective life term.

You don't think congressmen vote the way their constituents want? That the voters look at the ballot and simply think "Oh, I've heard of her"?
9.11.2007 1:03am
TJIT (mail):
Tony Tutins,

I think congressmen frequently vote in opposition to their constituents wishes. They rarely face primary opposition so this behavior does not hurt their electoral prospects that much.

Take a look at the number of incumbents who face and opponent or actually lose an election. It is a pathetically small number.

The districts are gerrymandered to be heavily republican or heavily democrat. So the candidate from whatever party has the heaviest registration in the district is going to win the general election.

So once a politician of the majority party is elected in a gerrymandered district he is pretty much assured of victory in the general election.

The only place he faces a real chance of opposition is in the primary. And primary races are stacked very, very, heavily in favor of the incumbent.
9.11.2007 1:45am
Dave N (mail):
Adding to TJIT's point, I would note that the more competitive branch of Congress is the Senate, not the House.

In 2006, 6 incumbent Republican Senators lost--Santorum, Chafee, Allen, Burns, DeWine, and Talent. In 2004, six Democratic Senate seats went Republican (through retirement mostly) in South Carolina, North Carolina, Georgia, Florida, Louisiana, and South Dakota. In both election cycles, this was a higher percentage of seats that changed than in the House. (18% in the Senate for 2006 versus 7.5% in the House)
9.11.2007 2:20am
Tony Tutins (mail):
Congressmen have to answer to the electorate every two years; Senators: every six. You seem to be saying that voters robotically keep picking the same people over and over, irrespective of their performance in office. But I think the voters are simply reluctant to toss out a legislator who has been performing satisfactorily. To me it's likely that the legislators have been responsive to the wishes of their constituents, to prevent their being voted out. Thus reelection is a mark of candidate responsiveness, not a mark of voter inertia.

I can relate to your feelings, however. When I lived in the liberal end of Congressman Henry Hyde's district, all my neighbors were perplexed and appalled that he kept getting reelected. But Hyde's voting record suited the vast conservative majority of his constituents just fine.
9.11.2007 4:49am
Tony Tutins (mail):
The article Jurisprudential cites shows once again(1) that lawyers are essentially amateurs in the field of statistics, just as statisticians are at best amateurs in the field of legal analysis. For the love of god, if you want to base your analysis on the proposition that justices' tenure is much longer than previous era's, have a pro analyse the tenure data to see if it supports your proposition. Then give him/her a publication credit. Among attorneys, only a patent attorney should have to understand that a polynomial approximation might be a closer fit to the data than a cubic spline.

(1) The most notable previous example was the attempt to show that blacks' bar passage rate would be much higher had they gone to much lower ranked schools than they did.
9.11.2007 5:11am
amper:
I question the wisdom of all term limits, assuming all other things being equal. The voters should have the right to decide who they want in office. OTOH, the election process has been so severely damaged that I also question whether or not elections even serve any meaningful purpose anymore.

Let us not politicize the SCOTUS anymore than it has already become, and start demanding better judgement from our judiciary and all our political leaders.

Only a return to civilized reason will rescue this Great Experiment from the doom we are rushing toward.
9.11.2007 7:09am
Duffy Pratt (mail):
Tony Tutins:

In your universe, the Cold War tension mounts continuously through Humphrey's elections. At that time, the Soviets dare to put missiles onshore into Cuba. Humphrey loses his cool and WW3 starts and ends quickly with 80% casualties in the populations of the US and Russia, and the world looking at nuclear winter. Would you like to play again?

On the main issue, I would much prefer to see a minimum age of 60 or 65 for a S.Ct. judge. Before someone gets that job, they should already have lived a full life.
9.11.2007 7:56am
James Lindgren (mail):
Dilan:

Calabresi has been making his argument for Supreme Court term limits since early in the first administration of G. W. Bush. If term limits were added to the Constitution early in the next (probably Democratic) administration, the choices of Hillary Clinton or Barack Obama would serve as long as they wanted to serve. They would be "grandfathered," just as President Truman was in an analogous situation.
9.11.2007 7:59am
Loren (mail) (www):
On the main issue, I would much prefer to see a minimum age of 60 or 65 for a S.Ct. judge. Before someone gets that job, they should already have lived a full life.

An age-65 requirement would eliminate virtually every person ever appointed to the Court. Horace Lurton was the oldest man ever appointed Justice, and he was exactly 65 at the time.
9.11.2007 8:36am
DJR:
Yes, it seems like a huge problem that vacancies formerly came up about every two years and now they come up on average every three. We may see that change soon given the age of a number of the current Justices.
9.11.2007 9:08am
Bretzky (mail):
I favor term limits for Supreme Court justices not because of the hoopla that surrounds a nomination or that we now have the ability to keep people alive long after they would have been dead forty years ago, but because a president should not have the ability to directly affect national policy 30+ years after he has left office.

Let's say that Clarence Thomas is on the bench when he turns 75 years-old in 2023. At that time he will be sitting on the Court 30 years after George H. W. Bush left office in 1993. Talk about the dead hand of the past. And I say this as someone who is a minor fan of Justice Thomas.

Fifteen years is plenty of time for someone to sit on the Supreme Court.
9.11.2007 9:13am
Bretzky (mail):
Tony Tutins:


When I lived in the liberal end of Congressman Henry Hyde's district, all my neighbors were perplexed and appalled that he kept getting reelected. But Hyde's voting record suited the vast conservative majority of his constituents just fine.

Maybe it did. However, I would be willing to bet a whole lot of money that the overwhelming (at least 80%) of the voters in your district couldn't name one vote that Hyde made during the previous session of Congress to which they were voting. The overwhelming majority of people who vote do so for the R and the D next to the candidates' names, not the candidate.

I'd also be willing to bet that if you put Strom Thurmond on next year's ballot in South Carolina, he could pull down 15 to 20 percent of the vote.
9.11.2007 9:23am
markm (mail):
Dave:

Given the hyperpartisanship of Supreme Court confirmation battles when there was a perception that there would be an ideological change on the Court (Thomas, Alito), I could foresee Presidential Candidate A saying, "Vote for me, I will replace Justice Scalia" and Candidate B saying, "Vote for me, I will replace Justice Stevens."

Both seem rather unseemly.

Unseemly, but what politics isn't? I've already heard this argument made for Bush in Libertarian vs. Republican debates in 2000 and 2004, because it was pretty clear that not all the Justices could survive until 2009. Basically, the message was, "Our candidate might betray almost everything you stand for and half of what we stand for, but voting for a third party will just help the other side to win - not just for 4 or 8 years, but through court appointments with effects far into the future." I've no doubt that over on the other side, Democrats were saying the same things to Naderites.

What does it say about W. Clinton and G.W. Bush that even Justices in their own parties hung on for as long as possible rather than clearing the way for them to appoint a successor? This makes me suspect that letting Justices time their resignations according to who will be appointing their successors is a feature, not a bug. I just wish their was a substantial prospect of better candidates emerging from the major party nominations in the future.
9.11.2007 9:44am
Simon Dodd (mail) (www):
Tony Tutins:
The Supreme Court comprises a stabilizing force against the passions of the day. Gay rights/no gay rights; abortions/no abortions; whatever it is, the Supreme Court represents evolution, not revolution.
It's a fairly peculiar idea that the Supreme Court has - in the long game - been a stabilizing force in the arena of abortion. I think most commentators - though they might phrase it more diplomatically - would agree with Justice Scalia that by inserting itself into the fray, the Supreme Court in "Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular...." The conventional wisdom is that abortion is far less divisive and inflammatory an issue in other countries precisely because they don't have a Supreme Court to "stabilize" the debate by removing it from the democratic arena, thereby preventing any kind of legislative reconciliation and compromise between the two sides.
9.11.2007 12:16pm
PLR:
Roe and progeny are stabilizing in the sense that all women of childbearing age in the 50 states and D.C. are assured of the ability to obtain a voluntary abortion if they act promptly and can come up with the check and money for gas to the nearest clinic.

The political debate is unstable, but I'll make that trade.
9.11.2007 1:07pm
markm (mail):
Simon: Anyone who thinks that abortion wasn't a contentious and divisive issue before Roe vs. Wade must have been either in a monastery or too young to pay attention. For my mother, who worked on many political campaigns, the ballot proposal to repeal Michigan's law against abortions was shaping up to be the campaign of her life - until the SC rendered the issue moot.

However, I think that if this had stayed in the political realm, the politics surrounding it would have remained saner and by now would have settled down into some sort of compromise in most states, with occasional battles to nudge the line a little one way or another. Roe vs. Wade aborted the normal political process of seeking a compromise. It also made it possible for politicians on both sides to advocate the most extreme positions - because it didn't matter what they did.
9.11.2007 2:37pm
Simon Dodd (mail) (www):
Mark, I think your second paragraph's the more apt point - surely the appropriate comparison wouldn't be between how contentious abortion as an issue was before Roe and how contentious it is now, but speculation between how contentious it is now and how contentious it might have been if left to play itself out in the political process.
9.11.2007 2:44pm
amper:
Scalia's view of Roe v. Wade is perfectly exemplary of what is wrong with constitutional jurisprudence in this country. Roe v. Wade was decided correctly on principle (right to privacy under either 14th or 9th Amend.), even if it was less than fully satisfying in its particulars (the arbitrary trimesters).

This quote from the dissent says it all:

"The Court simply fashions and announces a new constitutional right for pregnant mothers..."

No court can fashion new rights. Rights are inherent. Only privileges, immunities, and powers may be fashioned (which, I would remind are also subject to provisions of both the 14th and 9th Amends.). For Justices of the Supreme Court of the United States, this lack of fundamental understanding of our Constitution is simply unconscionable.

Frankly, I don't care if this annoys the crap out of authoritarians. Get over it, and get your damn laws off my body!
9.11.2007 2:44pm
KeithK (mail):
"As a side note, I think the no-third-term amendment was the stupidest thing the Republicans ever did..."

Peaceful transfer of executive power is critical to a successful democracy. One of Washington's greatest acts was walking away from the Presidency after eight years. He set the example that US presidents didn't serve for life. Codifying this tradition was appropriate after FDR finally ignored it and was elected to third and fourth terms.

I don't care how much you like President A and dislike his successor. The republic is stronger because of the succession.
9.11.2007 3:01pm
amper:
While I'm sure we all have many reasons to respect the memory of George Washington, his decision not to seek re-election is not necessarily one of them. The 22nd Amend. should be repealed, and while we're at it, let's have an amendment allowing any person who has been a naturalized citizen of the United States for 35 years to also be eligible for President.

FDR didn't "ignore" anything. The only reason we have a 22nd Amendment is because the Republicans were pissed off at everything he'd done in his nearly four terms. There is simply no rational basis to conclude that a President is going to be corrupted in some way merely because the people choose him more than two times, and ever if this were the case, we still have multiple means of removal.
9.11.2007 3:35pm
nunzio:
How about 18 year terms for constitutional law professors and reporters who cover the Supreme Court.

I agree with Levinson that Rehnquist should've been gone. I'd say the same thing about Levinson and Linda Greenhouse.
9.11.2007 3:58pm
Randy R. (mail):
Reminds of a story that Thurgood Marshall would tell his law clerks during the Reagan years. He used to say that they know how he is going to vote on any issue, and if he dies in office, they should prop him up in his chair, and lift his hand to vote the way would have.

Rest in peace, good man!
9.11.2007 4:29pm
TJIT (mail):
Tony Tutins says,
You seem to be saying that voters robotically keep picking the same people over and over, irrespective of their performance in office.
Nope, I'm saying the system is setup in such a way that the only person they get to vote for in the general election is an incumbent or someone from a party that is not the majority party of the district.

The primary campaign of pat toomey against arlen specter gives a good example of this. The republican party, from the president on down supported the incumbent (specter) even though toomey was arguably more in synch with the philosophy of the republican primary voters.

On top of the party support incumbents have a huge advantage in fund raising over their opposition. The campaign finance incumbent protection laws favor the incumbents. Which is not surprising because the incumbents wrote the laws.

I know you like to believe voters are making rational voting decisions but that does not square with what goes on in the elections.

The process is gamed to heavily favor the incumbent. That is why so few incumbents face a primary opponent.
9.11.2007 5:57pm
Smokey:
Anyone who proposes more damned diddling with the Constitution should start their own country and move to it. Pretty much every time the Constitution has been altered, the result has been far worse than the 'cure.'

Look at the mess the 17th Amendment made. Prior to that, Senators actually represented the citizens of their state. But now, even if a Senator's decision would greatly benefit the citizens of his state, he will vote against it and toe the Party line if that's what his political Party wants -- and the citizens be damned.

Nothing I've seen indicates that self-serving political hacks who want to alter the Constitution, simply in order to get a leg up, have as much sense as the Framers.
9.11.2007 9:53pm
Thomas_Holsinger:
I'd like to see an 18-year limit for all federal judicial and legislative officers.
9.12.2007 12:33am
James Lindgren (mail):
Thomas:

There isn't a general problem regarding lower court judges staying on too long. There is no reason in practice for term limits for lower federal courts. Indeed, we have too many vacancies to fill.

Jim Lindgren
9.12.2007 2:14am