Supreme Court Term Limits

Continuing a theme of late here at OTB (see here and here), the Kagan discussion reminds me of another reform to the US constitution that I would love to see:  changing the term of office of Justices of the Supreme Court.  Specifically I would eliminate lifetime tenure and instead institute a single term that would be somewhere in the 10-14 year range.  I have not thought through the exact implications of a specific term length, but know that it should be longer than 8 years (i.e., the length or two presidential terms) and that the terms ought to be staggered.  The model used to appoint the Board of Governors of the Federal Reserve (14 year terms) might work.

There are several reasons to do this.

  1. Politics.  Since the stakes are so high for a lifetime appointment, the vitriol in the Senate (and in the public write large) can reach a fever pitch.  Now, I understand that no matter what the term lengths might be that the politics surrounding a SCOTUS nomination would be significant, but the stakes would be different for a 10 or 14 year nominee than for one that might serve 30+ years.  For example, the retiring Justice, John Paul Stevens, was appointed to the Court three and a half decades ago.  That’s a long time to give one individual that much power and influence and political opponents have to take these time horizons into account.
  2. The Age Thing.  Following on from the previous point, the incentives are such that presidents have increasingly sought out younger nominees in the hopes of leaving their marks on the court for decades and decades to come.  Again, that is a lot of power to give a given president.  This also means that highly qualified candidates in their 60s are no longer considered.   At a minimum, a fixed term would broaden the pool of acceptable nominees.
  3. Quality.  Not only does the current situation incentivize picking younger candidates, it also incentivizes picking candidates without paper trails.  Because the stakes are so high, presidents are incentivized to pick non-controversial nominees, which means not just not picking obvious advocates, but also shying away from candidates that might have rich intellectual/academic records.  It seems to me that this is a net negative for the country.  Now, this may still be the case with a shorter term, because the stakes would remain quite high for a SCOTUS nominee.  Still, it is a very different thing to appoint someone for a decade vice three and a half plus.
  4. Power.  Does it really make sense to empower an individual in one of nine key political positions for that much time?

UPDATE (James Joyner): Matt Yglesias agrees and adds another pretty good reason:

The most important consideration for the future of American law is not whether Justice Kagan turns out to be more like Breyer or more like Stevens, it’s whether the seventy-four year-old Antonin Scalia can stay in good health until there’s a Republican in the White House. That’s a weird way to run a legal system, especially because the extraordinary difficulty of amending the constitution gives the Supreme Court power that’s very hard to check. What’s more, we might plausibly see in the near future the situation in which an elderly justice begins to suffer from very serious medical problems but refuses to step down because he or she finds the incumbent president ideologically uncongenial.

FILED UNDER: Steven Taylor, US Politics, , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. jwest says:

    On the subject of political reform, the first place to start is quality of the representatives and the way our system should allow for incentives to improve the quality of their work.

    Congressmen and Senators either need to be multimillionaires or so poor that the current pay represents an increase in their living conditions. The incentives to work for a fiscally disciplined budget are non-existent and the temptations to look out for one’s own financial future are great.

    The best method to turn this situation around is to restructure pay for federally elected officials to include a base pay of $500,000 for congressmen and $750,000 for senators. In addition, a bonus equal to their base pay would be paid if budgets are produced on-time and are below the rate of inflation. Each would also receive NetJets hours proportional to the distance their district or state was from the capital.

    This approach would attract far more qualified, non-ego driven candidates that could afford to support their families and operate two households during their tenure. The additional expense to the federal treasury is insignificant in comparison to the amount of tax dollars that these representatives are responsible for spending (or hopefully saving).

    Taken alone, this change in pay and benefits would only increase the amount of time spent raising campaign dollars from 5 hours a day to 10. A fundamental change in campaign finance is required.

    Challengers for any seat should be allowed to raise unlimited funds from any U.S. citizen, corporation or union. All funds would be immediately disclosed on the internet and placed in one account. No funds would be allowed to be spent until a predetermined point prior to the primary or election. On the day previous to the release of funds to the challenger, the incumbent would receive an exact matching account, funded by taxpayer dollars. All expenditures would flow from these accounts with stiff penalties for any undisclosed or extra spending.

    This method would insure that elected officials work for the benefit of the majority of the people they represent, not the interests that would fund their next campaign.

    If the public can overcome their tendency towards petty jealousy and envy, they will find this approach far more productive and to their benefit than the broken system we live with now.




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  2. PD Shaw says:

    I agree with this reform, but I believe it was Justice Stevens who said that while he did not have any problem on term limits, he felt that we should make sure that the High Court was the last job a justice ever had. I think he’s concerned about the revolving door, as former colleagues draw attention to themselves arguing a case, or the appearance of influence that would arise. (Fortas was perhaps the last justice to go into private practice and argue to his former colleagues)




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  3. The most important consideration for the future of American law is not whether Justice Kagan turns out to be more like Breyer or more like Stevens, it’s whether the seventy-four year-old Antonin Scalia can stay in good health until there’s a Republican in the White House. That’s a weird way to run a legal system, especially because the extraordinary difficulty of amending the constitution gives the Supreme Court power that’s very hard to check. What’s more, we might plausibly see in the near future the situation in which an elderly justice begins to suffer from very serious medical problems but refuses to step down because he or she finds the incumbent president ideologically uncongenial.

    Does Young Mr. Yglesias mean like Justice Stevens? His motes are quite impressive.




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  4. floyd says:

    They already have “term limits”… or is it expiration dates?[lol]
    Of course I guess [to paraphrase Clinton]
    It depends on what the meaning of the term “limits” is.




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