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).

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