Term limits for Supreme Court justices are in the news again. See, for example, Timothy Noah and links therein. We had a go-round on this here in 2010. See my two posts, and links therein to Andy and Matt Yglesias. The piece of research to read is Justin Crowe and Chris Karpowitz’s article, “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice” (gated; ungated). One argument that Noah makes is that term limits would make the politics of Court nominations and confirmations less divisive, since the stakes would be lower if the justices only served a limited term. I’m less convinced. Here is what I wrote then:
Other advocates of term limits argue that they would reduce the divisive politics of Court appointments. This is the motivation for Fallows’ post. 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. A lot of the divisiveness stems from party polarization in Congress, which is not likely to go away anytime soon. Under term limits, I would foresee an increasing number of equally divisive Court battles. Indeed, they might become even more divisive because leaders would know exactly when vacancies would arise, making them even more a dominant consideration in campaigns.
See the posts for more.
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While I think some sort of term limit (10 or 15 years?) is probably a good idea, I tend to agree that it would not significantly affect the stakes and contentiousness of individual confirmation processes.
I have long believed that one of the best ways to reduce the contentiousness is to have a larger court, thereby making any one appointment less critical. The USA has one of the smallest supreme or constitutional courts in the democratic world (and many countries have separate supreme and constitutional courts). Of course, how you get agreement on expansion in the very context of polarization and contentiousness that this remedy allegedly would address is a difficult nut to crack.
Other notions that arise from consideration of comparative national or US state courts include include taking the executive out of the nomination process, or at least out of the initiation stage, or requiring super-majorities for confirmation (or some combination of these provisions).
Is there a literature that addresses the impact of provisions such as these? Probably, but it’s not one I follow.