Supreme Court Term Limits

SCOTUS Term Limits

There are no term limits for Supreme Court Justices and there never have been in this country. They serve for 'good behavior' according to the Constitution, meaning until they retire or get impeached for breaking the law. Their terms are set by the Constitution.

Every so often the idea of term limits for Supreme Court Justices springs up. A common suggestion is 18-year terms. The average length in office for Justices has dramatically increased (the justices retiring before 1970 lasted an average of ~15 years; those retiring after 1970 were on the Court an average of over 25 and a half years, as of mid-2005). What's interesting, though, is the theoretical and design aspects. Good reasons for term limits -which should not necessarily be implemented- include:

1) Limit age as a strategic factor in appointment. Right now, a wise President would appoint the youngest possible jurist. This effect is limited because people expect Supreme Court Justices to be old and because Senators want somebody with a track record and a resume. However, a smart President would try to pick someone in his early 50s or even late 40s, if a well-qualified candidate could be found. Why? Because if it's a good pick you can reasonably expect a 50-year-old to have 30 healthy years on the Court. Appointing a 65-year-old could cut that prediction in half.

By instituting limits, it would decrease, if only somewhat, this selection effect. People in their late 50s or early 60s would reasonably be able to fill out their terms and hence might not be excluded by an age-intensive strategy. Naturally a younger person is going to be perceived as healthier than an older one, but this give more senior candidates a leg up, which combined with their resumes can seriously balance the field and allow Presidents to appoint the most qualified, not the one who can simply live the longest.

At the same time, this puts a cap on the propensity of Justices to go serve beyond their physical and mental abilities.

2) A predictable effect on the Court. The President could be reasonably expected to make two appointments in a term, and three in case of death or early retirement/resignation. By standardizing somewhat the terms, Presidents won't have such a randomly increased or decreased influence on the Court. For example, Reagan was able to make 3 court appointments. Bush-41 made two appointments in back to back years. Clinton made two appointments in his first two years, but none the other six years he was in office. Bush-43 made none until his fifth year (when he made though two, though Alito was not confirmed until 2006), while Ford made an appointment in his half of a term in office.

In order to properly gauge this point, everyone should imagine a President they dislike having a concentration of appointments and then imagine a President they like having a concentration of appointments. Viewed from a balanced vantage point, it seems that at least ideally a predictable diffusion of appointments makes the most sense.

3) Fresh blood, new ideas. Before Alito and Roberts were on the Court, Gerald Ford and Richard Nixon each had more appointees on the Court than a sitting, second-term President did. It might make more sense if the appointees of more recent Presidents had more presence on the Court.

4) Decrease political maneuvering by resignation. Currently it's understood that justices tend to make some effort to retire when there's a President in office the same party as when they were appointed. This is neither official nor enforced, but it is assumed to happen. It would eliminate the pressure to leave early or stay too long by limiting the political dimensions of resigning based on the President's partisan affiliation.

The idea, while not perfect, does have its merits. What are some potential drawbacks to the idea?

1) Possible lengthening of terms for Justices who otherwise might have retired after 10 or 12 years. It might actually increase the length on the Court for many Justices, and if they're physically or mentally shaky then it encourages them to complete a term they otherwise might have felt little pressure to fulfill. Of course, the average term limit would be less than 18 years, since no Justice would serve more than the term. However it might encourage Justices to stay on longer than they really ought to.

2) One-size-fits-all means that qualified jurists would be kicked off prematurely. Stevens and Rehnquist served the Court for over three decades. It's not entirely clear that kicking out Justices after 18 years is going to always be the best thing. After all, if Rehnquist had 18 years on the Court, he would have been years off the court before making the landmark Lopez decision in 1995.

Let's just see how the Court looks now and how it would look if the terms were staggered to end in the first and third year of every Presidential term. Here's how it was before Roberts and Alito:

Notice how there hadn't been an appointment in over ten years, and how Nixon and Ford appointees were still on the Court. Notice also that Carter has no appointees, despite being more recent than either Nixon or Ford, and neither had Bush-43 despite being more recent than Clinton. Here's the court post-Alito:

Now here's how the 18-year terms would look, staggered to come in the first and third year of a term:

All their names are "J" for Justice, rather than assuming the same people would have been appointed. If we counted 18 year terms from the date they joined the Court, then Stevens and Scalia would be off the Court (and Rehnquist and O'Connor would also both have completed their terms before 2005, when they left the Court). If the 18-year terms had been the norm all along, then the current court would have 5 GOP nominees and 4 Democratic nominees, and Bush would be replacing the last Reagan pick this year. Of course, you could also do it in election years, but politicians would prefer off-years for court fights.

The Justices would be more recently picked; today the appointments range from 11 to 30-plus years ago. A lot of the Senate wasn't even there when Breyer was appointed, back in 1993. Which of course brings up two additional problems: Senators are often elected for their views on the judiciary but until 2005 had little effect on the Supreme Court since 1993, and all the Senators elected in 1994 or beyond had no personal experience (from the perspective of Senators) in working on a Supreme Court appointment until 2005.

This issue of terms, if it gains any real steam at all, is likely to come down on a partisan basis. After all, there hadn't been an appointment from 1994 to 2004. That means ten years of elections and politics had no direct effect on the membership of the Court. Neither did the landslide election of 1994 nor the surprising mid-term gains of 2002 have a direct effect on it. Now, to be clear, the court has seven R-appointees and only two D-appointees, but that doesn't tell the whole picture. Three of the Republican-appointees are pro-Roe, two of the Republican-appointees are pro-partial-birth abortion, and so forth. So while it is true that Republican-appointees have a controlling supermajority on the Court, that doesn't seem to have a real effect on their decisions.

Here's a look at what would have happened had terms affected all Presidents since 1900. This graph assumes for the hypothetical section that 18-year term limits had been up and running by 1897 (McKinley's inauguration) and that one Justice's term expired every two years, timed exactly to a new President's inauguration (whether in March or January). It also assumes all Justices finish their terms completely and that CJs would be appointed in 1897, 1915, 1933, 1951, 1969, 1987 and 2005. The asterisk indicates a Chief Justice was appointed.

By this chart, then, the Democrats would see a small net gain in appointments and the Republicans a slightly larger net loss in appointments. Of course, many Justices serve terms less than 18 years in length, and that distorts the relevance of the Gain column. To really calculate the influence of the Court would require measuring the balance of the Court, the impact of key Justices on swing decisions or on the views of their counterparts, and shifts in their views from the time of appointment (a mitigating factor on Presidential influence).

The most salient and important aspect of such a reform would be the democratizing effect. By guaranteeing that every Congress dealt with at least one appointment (and making it less likely that any one Congress would handle two or even three), this reform makes sure that Congressional elections have a more predictable influence on the judicial branch. Of course, the judicial branch is not supposed to be entirely susceptible to electoral swings or electioneering in politics, so this effect is not an unmitigated good.

But it's still likely that the biggest Court-haters - who for now are coalesced in the social conservatives and a fringe of Green-anarchists - are going to appreciate some movement to reform the Court. The problem is that it doesn't address the ideological complaints about the Court. The social conservatives are fairly substantial as a group, but they want a reform to circumscribe the power of courts to rule on a host of issues. The Green-anarchists are particularly small, and their pet issues about environmental rights and repealing corporate rights are unlikely to get any hearing outside the far-left or the ideologically anti-establishment. It's hard to see much reason either of these groups would really care about term limits.

The only reason is practical. You can't do it for or against Bush, because it's too late for this amendment to affect his Presidency very much. You can't do it for social conservatism or Green-anarchism because changing the spacing of appointments wouldn't change the decisions or the power of courts. You have to want it simply because it would be a common-sense, practical reform. Is there enough potential support for such a change? Who knows.

You might be able to get Congress to pass it, and from there you just have to get enough state legislators to buy it. Could it pass without a major move from public opinion? Maybe, but it seems more than likely you'd need some catalyst to push it - like an elder Justice going senile or having a stroke and speaking gibberish, or something. Until there's some major reason to change and some catalyst or icon to rally against, there probably isn't quite enough popular support to push this ambiguous reform.