Published : Oct. 8, 2018 - 17:16
Suddenly everybody wants to explore term limits for Supreme Court justices. Welcome aboard. I’ve been on that train for almost a quarter of a century. The current argument is that life tenure is a leading cause of the increasing viciousness of our confirmation battles. But whether term limits would fix the process depends on whether we’re right about what’s wrong.
Term limits are popular. Some 61 percent of Americans support them. Whether categorized by party, income, race, gender or religion, in no demographic group does a majority oppose them. Over the last decade or so, many legal scholars have embraced the idea of discarding life tenure in favor of either a mandatory retirement age or, more often, a specified number of years on the high bench -- usually 18 or 15.
There’s no question that the court is graying. The justices nowadays retire at an average age of about 83 -- a full decade later than they did half a century ago. They are also staying on the Supreme Court longer than ever before.
Still, it’s not quite correct to suggest that term limits would bring the Supreme Court closer to the institution the founding generation imagined, when life tenure did not equate to life service. It’s true that justices served shorter terms. But few of them stepped down to pursue other careers. Even in the early republic, most served until death or until illness forced them to step down. Their terms were shorter because people didn’t live as long.
Nevertheless, there are multiple problems with life tenure. For one thing, justices may engage in “strategic” retirement, timing their decisions to coincide with the administration of a president they like -- and, perhaps, a sufficiently friendly Senate. Then there’s the much-discussed question of what longer tenure does to the justices themselves. The estimable David Garrow contends, with entire seriousness, that the aging of the court causes problems of “mental decrepitude” among its members. As the law professors Steven J. Calabresi and James Lindgren have argued, the system of life tenure “is essentially a relic of pre-democratic times.”
But the biggest problem with life tenure is that it makes a seat on the bench far too valuable.
What drives all this is that vacancies occur so rarely. Their scarcity drives up the political price each side is willing to pay in order to get one. We can’t reduce the demand, but we can increase the supply.
Consider that even before the allegations of sexual assault became public, opponents of Brett Kavanaugh were arguing that if confirmed, he would be a major influence on the development of constitutional law over the next three or four decades. That’s become a standard lament about the other party’s justices -- but it’s also the reason that President Donald Trump, like President Barack Obama before him, is choosing them young. Seats are valuable, and each side wants to hold onto them for as long as possible.
The best way to create more seats is to limit the justices’ terms. But even 15 years now seems too long to quiet the battles. In my book “The Confirmation Mess” I suggested eight or 12 years, but now I think the right figure is nine. Yes, nine -- a vacancy every single year. Presumably you’re now recoiling in horror. Every year? Wouldn’t an annual vacancy just make things worse? Certainly there are prominent senators who seem to think so.
But maybe they’re wrong. After all, an open seat isn’t nearly as valuable to either side if both know there’s another guaranteed vacancy next year.
What are the objections to this system? The first, of course, is that a constitutional amendment would be required. But suppose we could surmount that admittedly high barrier. Surely the biggest problem is what a retired justice would do next. My answer in the past has been that the former justice can go back to being a life-tenured judge on another court.
The trouble is that many wouldn’t want to -- not after nine years at the very summit of the profession. Yet federal judges who have stepped down to practice law have often been accompanied by charges of conflict of interest, leading some scholars to argue that former justices should be prohibited from practicing law entirely. I’m uneasy with going quite that far -- but the difficulty is a real one.
Nevertheless, I adhere to the view that the justification for life tenure, if one ever existed, expired long ago. If we want to cut down on the carnage, let’s try something new: supply and demand.
Stephen L. CarterStephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University. -- Ed.
(Bloomberg)