On Limiting the Tenure of Supreme Court Justices, Part 2

by Andrew Gelman on August 10, 2010 · 5 comments

in Judicial

Responding to an article by James Fallows, John argues that term limits for U.S. Supreme Court judges would have little effect.

I tentatively disagree with John on this one. It’s not that I think any of his points are wrong, exactly, and I’m sure that John is much more knowledgeable about the political science literature than I am. It’s more a matter of emphasis. One thing I’ve noticed over the years is that political scientists, at least those studying American politics, are often skeptical about proposed reforms, perhaps in reaction to the overselling of such proposals by activists.

In this case, John has a bunch of reasonable arguments but it seems to me that he’s spinning them in the skeptical direction, but they could just as well be spun in the direction of reform. Let me go through the arguments in turn:

1. Long-term and short-term judges. John writes:

Any changes in the tenure of justices over time is not due to an increase in the number of justices serving long terms. There have always been those justices on the Court. Instead, there has been a decrease in the number of short-term justices.

That’s fine, but it doesn’t at all counter the argument that term limits will reduce the long terms.

2. Changes in working conditions. John writes:

Justices have more power and prestige than they used to. No wonder few want to leave the bench quickly.

This makes sense to me, and it seems related to the general pattern in our society that life is getting better for people at the top. I agree with John that this is evidence neither in favor nor against judicial term limits.

3. Divisive politics. John writes:

Other advocates of term limits argue that they would reduce the divisive politics of Court appointments. . . . Crowe and Karpowitz are skeptical, and I tend to agree. I doubt that presidents, Senators, interest groups, and others would suddenly stop caring as much if justices served only 6 or 8 or 12 years.

John seems to be making a reasonable point here. With the current partisan polarization and the current huge power of the Supreme Court, it makes sense to see ideological battles over judicial nominees. The surprise, maybe, is that this hasn’t happened more already.

4. Age. John writes:

The last argument is that the Court would benefit from youthful vigor. Advocates of this argument also point to the decline in mental acuity that some older justices have faced. Crowe and Karpowitz note, however, that if acuity is the criterion, then term limits are a not an ideal solution, since mental decline could strike even at a younger age. Coming up with an acuity test for justices would be challenging, to say the least.

I don’t buy this argument at all. Yes, mental decline could strike even at a younger age. But there’s a correlation with age, no? It seems silly to dismiss this argument just because the correlation isn’t 100%.

Beyond this, one argument I’ve heard for term limits is that, under the current system, presidents are motivated to nominate youngsters because then they can be on the court forever. With a fixed term, this motivation would be reduced (even if not completely removed).

John concludes:

In short, whatever problems people have with the Supreme Court, it’s unlikely that term limits will solve them.

Maybe so—but maybe term limits could help! Asking any reform to solve all the problems is setting a bit of a high bar, I think. Perhaps the real issue is that pressing for reform takes political effort, and maybe that effort would be better spent elsewhere (reducing the power of the court, for example, or open primary elections, or campaign finance restrictions, or tax reform, or . . . name your cause). That could be. But I’m skeptical about automatic skepticism about political reforms. Even if a reform doesn’t solve all problems, it could be a step in the right direction.

Overall, I think John’s entry on this topic is more valuable than mine, because he brings actual facts to the discussion while I’m just conveying opinions. (That’s blogging, right?) So if you come to this entry first, you should go back and read John’s. Then you can return here for my moderating view.

P.S. More here (from John) and here (from me).

{ 4 comments }

Rob Robinson August 10, 2010 at 1:04 pm

I agree primarily with the age point; it seems perverse that you would avoid nominating an extraordinarily judge because she is 59 rather than 49.

Another point I would make: term limits would better connect Court appointments to elections because the appointments would be regular. Why should one president get no picks, and another four, simply due to the vagaries of fate and age (or strategic retirement)?

Of course, there would still be some inequity in impact (e.g. one president would only get to replace like-minded justices; another replace those he opposes), but a regular process seems to me superior to the one we have now.

Jay Livingston August 10, 2010 at 5:41 pm

Lifetime terms concentrate power. If you think that such concentration of power is a good thing, you should oppose term limits, which force a distribution of power to other people.

Zorro for the Common Good August 10, 2010 at 8:50 pm

Here’s another reason for term limits: both parties have increasingly converged on the same template for nominees: young, ambitious Ivy League grads who were carefully groomed over a 20-year period through a series of executive appointments where they did nothing remotely interesting or controversial (and could plausibly claim later that any positions they took were in service of the administration they served), followed by an appeals court appointment long enough to give them seasoning but short enough that they didn’t have much of an opportunity to piss anyone off. Also, because they spent all their time burnishing their resumes while angling toward their nomination in their mid- to late-40s, none of them ever managed to actually, you know, *do* anything.

That doesn’t describe every recent nominee, but it’s pretty close on most of them (Roberts being the apotheosis). The one notable exception, Ginsburg, is exactly the type that will never again be nominated. She was a real legal trailblazer who took on a lot of controversial cases, AND she was 60. And as the Kagan hearings demonstrated, a figure as controversial as Marshall would be almost unthinkable today.

Oh, and once both parties figured out the game, they also started identifying future nominees in the opposing party and making sure to derail those people before they got on the SCOTUS fast track, especially if they were potential ethnic “firsts” like Miguel Estrada, Goodwin Liu or Harold Koh. (Sotomayor was lucky she was already ensconced in a Federal judgeship during the HW Bush Administration, but that also meant that she was slightly older than the optimum age.)

Term limits wouldn’t solve all of these problems, but it would address a few of them. Because nominees could be older than 45, they might have the opportunity to go out and actually do something in that extra decade and a half. And while the stakes would still be high, they’d be a lot lower if the justice would only be around for 12 or 16 years as opposed to 40.

Finally, it would avoid the gamesmanship on the other end. Marshall was seriously losing it by the end, but stuck around out of the hope that the Dems would win in ’88. Does anyone doubt that Scalia will hang on to the bitter end if the Dems are in the White House?

frankcross August 10, 2010 at 9:41 pm

I like term limits, but I don’t see any evidence that age affects the quality of work. Stevens seems to do quite well. The old Douglas was kind of sloppy, but so was the young Douglas.

Maybe the biggest effect would be muting strategic retirements, timed for a president of ideological kin. This could have the effect of destabilizing the Court a bit. Whether good or bad is debatable.

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