In the wake of the unexpected passing of Justice Antonin Scalia a deluge of articles have hit the internet regarding the composition of the Supreme Court going forward, in particular the nomination of a ninth jurist before the tenure of the current president comes to a close. Of note is an article from law Professor and blogger Orin Kerr, who advocates that the bench would benefit from limited terms for the Court in place of lifetime appointments. Kerr writes the following regarding the rotation and appointment of the justices:
But note something exceedingly weird about all of this: The direction of the Supreme Court is in play because of the health of a single man who was named to the Supreme Court thirty years ago, in 1986. That’s a long time ago. If Justice Scalia had been in better health and lived longer, the Court would have retained its 5-4 conservative majority through this Term and into the future. On the other hand, if Scalia had been in worse health and had to retire sometime in the last few years, the Court likely would have already shifted to a 5-4 liberal majority.
What a strange system. It’s often said that elections have consequences. But thanks to life tenure, elections don’t have nearly as much consequence as they should have on the Supreme Court. A President might have zero vacancies to fill or may have many. For example, during the four-year Presidency of Jimmy Carter, no Justice retired. Carter never made a Supreme Court nomination. On the other hand, in the four-year window from 1937 to 1941, seven Justices died or elected to step down. President Franklin Delano Roosevelt and the Senate of that era quickly filled all seven spots.
If we all agree that the ideological orientation of the Supreme Court matters — which, for better or worse, undeniably has been in case in our collective memory — then I can’t see why that orientation should depend on how long a handful of people in their 70s and 80s can continue to serve. It would make much more sense to tie that orientation to the elected branches in some predictable and democratically accountable way.
That’s why I agree with those who favor term limits for Supreme Court Justices.
Imagine each Justice was appointed to an 18-year term instead for life. With nine Justices, you would have a vacancy every two years. Every Presidential election would mean two vacancies at stake. A new President taking office in January would know that the first vacancy would come up a few months later in July, when the Supreme Court finished the work of its annual term. The second vacancy would come exactly two years later. Justices from previous times would cycle off the Court at predictable times, and they would be replaced by new Justices reflecting the current President and Senate. The ideological makeup of the Supreme Court as a whole would tend to reflect the President and the Senate at two-year intervals going back over the previous 18 years.For the Supreme Court, elections would really have consequences. It would make a lot more sense than the system we have now.
I have no idea why this is a strange system, particularly in the history of the world where governments once inherited thrones, sometimes at early ages, and were vacated upon death or revolution. The idea of lifetime appointments certainly is not strange by those measures, nor alien. This is not justification for such a system, but strange it is not.
But the idea does have some merit, and to test the merit I thought a quick counterfactual may be beneficial. Consider this list of Justices, all of whom have served for longer than 18 years on the court, I included a graph of their time.
[Adapted from Wikipedia page]
Notabley the list is extensive, in short a significant proportion of justices served terms longer than 18 years if only by a small amount for some, and others for significantly longer periods. In total we have had approximately 112 justices sit on the court, this list contains 51, around 45% of the jurists served for longer than 18 years. Overall, I think we have benefited more by the longer terms. It has given stability to the Court even though it is marked with moments of political anxiety at the death or retirement of a justice.
However, consider some of the benefits of long tenure. Douglas, though not my favorite justice, wrote the Penumbras opinion in Griswold that has helped reform and revive the Substantive Due Process rights in the Constitution. This was 26 years after his nomination, and was likely motivated in part by his participation in the Korematsu case, which infamously allowed the interment of Japanese-Americans during World War II, an affront to due process and individual rights, which was only 14 years into his tenure. At the least his time on the Court served to reshape his views.
If term limits had been the rule at the outset, Marshall never would have penned Cohens v. Virginia in which he established the supremacy of the Supreme Court on matters of federal law even when interpreted by state courts. This principle of jurisprudence may never have been put to paper, at least not in these words, “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” Depending on how the rule worked, he wouldn’t have joined in any opinion beyond McCulloch v. Maryland.
Other examples include Justice Black not joining in Brown v. Board of Education, or Justice Harlan’s dissent in Plessy v. Ferguson. Most of Chief Justice Rehnquist’s tenure would have been cut short, or perhaps he never would have been considered for the position of Chief Justice since he served first as an associate for 14 years. Which reminds us of what brings this idea to the forefront, the passing of Justice Scalia, who in his later years continued his protection of the Fourth Amendment and Confrontation Clause, if only at times in dissent. Who is to say though that others would not have shaped the Court better, depending on your point of view, in place of these long-tenured jurists. Yet, it is hard to say that there are no advantages from these extended stays. Two come to mind. First, the ability of justices to change their mind over time and be persuaded by others, or vice-versa to leave a lasting impact on the Court as Scalia certainly has. The second would be the institutional delay of the Court from the political bodies, though this is no guarantee, longevity does permit that the Madisonian bet on time over temper be promoted through our nations highest court of law.
Another issue arises regarding replacements for those who pass or retire short of the 18 years. Worth noting, of those that died while serving on the Court a little more than half served shorter than the proposed 18 years. Which suggests under this system, we would have nominations more frequently than Kerr suggests. Something inquiring minds have already considered, such as this tweet from Bryan Gividen.
Enjoyed @OrinKerr on SCOTUS term limits. Q: How would premature vacancies be handled and how do you transition to the term limits?
— Bryan (@BryanGivi) February 16, 2016
The first question is valid but his second is crucial, if we are searching for consistency and an end to some of the political theater, than perhaps we should shy away from increasing the overall frequency that nominations would arise. With 18 year limits, retirements, and the chance of death in office, it seems this would only increase the political theater around the most apolitical branch (not saying it is entirely apolitical). Establishing a method to transfer to the new system is an interesting question but it is a one time problem whereas early vacancies will likely occur over and over. This tends to suggest that political upheaval and discord would increase when compared to the current system of life-time appointments..
The idea of term limits for Justices isn’t new. Many have proposed the idea before me. Polling suggests it’s popular, too. A 2015 Reuters/Ipsos poll asked respondents to pick between 10-year Supreme Court terms and life tenure. Among the respondents, 66% favored 10-year terms and only 17% supported life tenure.
The change would be hard to make because it would require a constitutional amendment. But I think the effort would be worth it. As you endure the coming showdown between the President and the Senate over the Scalia vacancy during the next few months, remember that it was avoidable. The problem is life tenure, and the answer is term limits for Supreme Court justices.
Amendments are difficult, even supposedly politically favored amendments. And frankly, on my list of possible amendments to the Constitution that are worth the political capital, it is not so clear to me that this merits too much effort, particularly since I have yet to hear a compelling reason for such a fight. To be sure, I may prefer term limits, particularly if they yield better constitutional results and are liberty friendly in the long term. I have no reason to see why this is the case though.
Perhaps a middle ground would be a mandatory retirement age, this too would require a constitutional amendment (either to set it or allow Congress to legislate it), but it may better preserve the benefits of the current system and mitigate the harms from the uncertainty. At this point I am open to multiple options but am leaning toward simply leaving it as is.
**Update: I failed a bit in terms of clarity and would like to address a couple points. Orin Kerr was kind enough to respond via twitter with this good point, that is: I appeared to pick cases with results that I liked as examples in favor of longer terms. I actually aimed to pick notable cases not so much as personally desired results- some I like, others not as much. Though, I am not sold on these cases I do recognize they continue to shape jurisprudence today or are historically significant. (I find myself on both sides at times of the SDP issue, for example).
What I hope to convey is that the benefit of long tenure, decided largely by each respective Justice, is the ability to shape jurisprudence both for the justices personally as much as the Court on the whole. This sometimes requires the slow-burn of life tenure. 18 years is a lot, but when considering the Court and the aforementioned examples, it is hard to say if it is sufficient. I did not do a full analysis, but instead wanted to put 18 years into context and show that Justices had notable contributions, many of which are highly praised some of which are not (though I didn’t detail those), to the law. What I do not see is a suggestion that limited terms creates greater accountability, but instead I see mixed results depending on each justice.
In this light, Kerr’s example of the FDR appointments is particularly poignant. The high turnover under FDR may have been hard to avoid as FDR was elected to 4 terms (serving 3 complete terms, as he died in his fourth) and some things are simply a matter of chance. Under Kerr’s system he would have put four justices in place before his third term, assuming no extra vacancies were left on account of death or retirement.
Life-time appointments prevent quick shifts in jurisprudence. FDR, by way of example, came up against significant resistance to his early New Deal legislation from the Court. Though he won in the end, it is at least worth considering that he would have been up against less resistance early on with his own appointees on the Court, or even from some of his predecessors. This is difficult to know as it is limited to a counter-factual. But I would suggest that the benefit of a slow (even very slow) moving judicial branch is preferred over another government body moved by the political process. Also, term limits likely would have failed to stop outlier events such as the change of composition under FDR.
Also worth noting, is the idea that since the Court is now more political than what may have been originally intended or more than it once was, we should subject it to the political process more frequently. Yet, whatever political insulation that remains is probably best left intact instead of stripping it bare before the uncertain hands of the democratic process. I am all for accountability in government, but also recognize that different branches are accountable in different ways to different things (districts, states, Congress, the law, the Constitution, etc.). Their respective tenures should match how they are accountable and what they are accountable to.
As I mentioned, I am not completely decided (though I’m sure it sounds like I am). As of now I think the benefits of the current system outweigh the risk of change. I doubt we gain any great benefit from increased accountability by creating strictly limited terms and frequent appointments and believe we likely loose some institutional value. To be sure, predictability and accountability do sound nice, it certainly has appeal. I also like the prospect of each nomination having less importance since they occur with more frequency, though if presidential election are any indication that may never materialize. To be persuaded I would have to know what benefits we would receive from increased accountability in terms of results. On the whole, I don’t know if it pays off.
James C. Devereaux is an attorney and freedom fanatic who discriminates based on his preferences and tastes. Questions, complaints and hysterics can be sent to email@example.com or follow him on twitter @jcdevereaux1. All views are my own.by