On Limiting the Tenure of Supreme Court Justices, Part 4

by Andrew Gelman on August 12, 2010 · 2 comments

in Judicial

John: On Limiting the Tenure of Supreme Court Justices

Me: On Limiting the Tenure of Supreme Court Justices, Part 2

John: On Limiting the Tenure of Supreme Court Justices, Part 3

The short story so far: John is skeptical about proposals to institute term limits on the Supreme Court. I agree with John that the effects of effects of such a reform would be uncertain but I don’t think that, as political scientists, we should let our inevitable uncertainty about outcomes should lead us to so quickly dismiss the idea.

Beyond everything else, I’d hope that term limits would remove some of the mystique of the Supreme Court, starting with the idea that they’re called “justices” rather than simply “judges,” which is what they are. It’s almost as if they are considered to be the personification of justice.

John has some specific replies to my comments in his “Part 3” blog above, which I’‘ll reply to here:

1. I wrote that “term limits will reduce the long terms.” John replies that this is not so, “if the proposal is rotating eighteen-year terms.”

I’m pretty sure John’s wrong on this one. Judges often serve more than 18 years nowadays, so an 18-year term would indeed reduce the long terms! I think the point John’s making, based on the research he’s citing, is that term limits introduced right now wouldn’t reduce the long terms any more than we’d expect long terms to have been reduced, had term limits been introduced in earlier eras of the Court. This may be so, but my point was the effect of term limits now, not a comparison to what term limits might have done in the past.

2. John points out that “term limits are a pretty blunt instrument for ensuring mental acuity” and also adds some data to the discussion (always a good move!) by pointing out that, in any case, the average age of Supreme Court nominees in the past few decades is 53, “down a little bit from the first half of the 20th century, but no different than it was for most of the 19th century.” So it’s not like presidents are nominating a bunch of inexperienced kids to the Court.

Point taken, but one thing that bothers me is the expectation that judges can stay on the court forever if they want to. If the norm were that judges would be on the court for a few years but occasionally stay longer, that could be fine, but that’s not what seems to be happening.

To put it another way, John’s arguments are essentially comparisons of the current system to the past. He’s arguing that there were long-serving elderly judges in the past, just as there are today, so why worry?

But who’s to say that the Supreme Court was so wonderful in the past? Roger Taney was 80 years old when he ruled on the Dred Scott case, which is, I believe, the consensus for the worst call in Supreme Court history. The case came on his 22nd year on the Court.

The meta-argument

In my previous entry I framed John’s skepticism about term limits as an example of a more general pattern of political scientists being all too ready to dismiss proposed reforms, perhaps in reaction to the overselling of such proposals by activists. I see political scientists, as a group, as often being too committed to whatever the current system is, for example pooh-poohing campaign finance reform because it can be evaded or dismissing open primaries because there’s no convincing evidence that they will get rid of partisan polarization.

In contrast, I often feel that a reform can be a good idea, even if it doesn’t solve all the problems.it’s intended to address. For example, I think gerrymandering is way overrated as a political problem—in 1994, Gary and I even wrote a paper called Enhancing Democracy Through Legislative Redistricting in which we showed that existing redistricting (gerrymandering and all) led to more competitive elections—but I’d still support a move toward nonpartisan redistricting.

From the other direction, though, it can make sense to ask why a particular reform is being suggested at a particular time. In some cases, it’s clear: for example, the recent proposals to change Senate rules are a direct response to the sharp increase in the use of the filibuster in recent years. I’m not sure if there’s anything so topical motivating the Supreme Court discussion; maybe it’s just an issue that comes up from time to time. In any case, in response to my generic reaction that John is being a typical political scientist by reflexively dismissing a reform proposal, John might well respond that I am showing the generic reaction of naive reformers to give a default positive view to whatever flavor-of-the-month reform happens to be talked about by pundits right now.

As I noted above, my differences with John on this issue seem more of a matter of emphasis than anything else. Are lifetime appointments and long terms basically OK, given that this system has been in place for more than two centuries (as John says), or would it make sense to change the rules (as I’m inclined to think)? In any case, the data that John and others bring to the table help us to understand these arguments.

P.S. I just had a horrible feeling that this same argument could be used to support fixed terms for college teachers. Let’s not go there.

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