April 10, 2005

SCOTUS Term Limits

Jim Lindgren at Volokh Conspiracy is bringing back up the issue of term limits for Supreme Court justices. Specifically, he suggests 18 year terms. He has all sorts of evidence on how the average length in office has dramatically increased (the justices retiring before 1970 lasted an average of ~15 years; those retiring after 1970 were on the Court an average of over 25 and a half years). What interests me, though, is the theoretical and design aspects. Good reasons for term limits -which I should emphasize I'm not convinced should be implemented- as I see them include:

1) Limit age as a strategic factor in appointment. Right now, a wise President would appoint the youngest possible jurist possible. This effect is limited because people expect Supreme Court Justices to be old and because Senators want somebody with a track record and a resume. However, a smart President would try to pick someone in his early 50s or even late 40s, if a well-qualified candidate could be found. Why? Because if it's a good pick you can reasonably expect a 50-year-old to have 30 healthy years on the Court. Appointing a 65-year-old could cut that prediction in half.

By instituting limits, it would decrease, if only somewhat, this selection effect. People in their late 50s or early 60s would reasonably be able to fill out their terms and hence might not be excluded by an age-intensive strategy. Naturally a younger person is going to be perceived as healthier than an older one, but this give more senior candidates a leg up, which combined with their resumes can seriously balance the field.

At the same time, this puts a cap on the propensity of Justices to go serve beyond their physical and mental abilities. The Strom Thurmond effect, as it were, would be curbed somewhat.

2) A predictable effect on the Court. The President could be reasonably expected to make two appointments in a term, and three in case of death or retirement. By standardizing the terms, Presidents won't have a randomly increased or decreased influence on the Court. For example, Reagan was able to make 3 court appointments. Bush-41 made two appointments in back to back years. Clinton made two appointments in back to back years, but none the other six years he was in office. Bush-43 is on his fifth year in office but has made none, while Ford made an appointment in his half of a term in office.

In order to properly gauge this point, everyone should imagine a President they dislike having a concentration of appointments and then imagine a President they like having a concentration of appointments. Viewed from a balanced vantage point, it seems that at least ideally a predictable diffusion of appointments makes the most sense.

3) Fresh blood, new ideas. Gerald Ford and Nixon each have more appointees on the Court right now than the sitting, second-term President does. While that makes it seem like this is about Bush, I assure you it's not. It just seems like it might make more sense if the appointees of more recent Presidents had more presence on the Court.

4) Decrease political maneuvering by resignation. Currently it's understood that justices tend to make some effort to retire when there's a President in office the same party as when they were appointed. This is neither official nor enforced, but it does happen. It would eliminate the pressure to leave early or stay too long by limiting the political dimensions of resigning based on the President's partisan affiliation.

I'm not entirely convinced it's a good move, but I definitely think it has its merits. What are some potential drawbacks to the idea?

1) Possible lengthening of terms for Justices who otherwise might have retired after 10 or 12 years. It might actually increase the length on the Court for many Justices, and if they're physically or mentally shaky then it encourages them to complete a term they otherwise might have felt little pressure to fulfill. Of course, the average term limit would be less than 18 years, since no Justice would serve more than the term. However it might encourage Justices to stay on longer than they really ought to.

2) One-size-fits-all means that qualified jurists would be kicked off prematurely. Stevens and Rehnquist have been on the Court for over three decades. No one really disputes that they have both been productive their first thirty years in office. It's not entirely clear that kicking out Justices after 18 years is going to always be the best thing. After all, if Rehnquist had 18 years on the Court, he would have been years off the court before making the landmark Lopez decision in 1995.

Let's just see how the Court looks now and how it would look if the terms were staggered to end in the first and third year of every President term. Here's how it is now:

Notice how there hasn't been an appointment in over ten years, and how Nixon and Ford appointees are still on the Court. Notice also that Carter has no appointees, despite being more recent than either Nixon or Ford, and neither has Bush-43 despite being more recent than Clinton. Now here's how the 18-year terms would look, staggered to come in the first and third year of a term:

I've made all their names "J" for Justice, rather than assuming the same people would have been appointed. If we counted 18 year terms from their real-life appointment date, then Rehnquist, Stevens, O'Connor and Scalia would all be off the Court. If the 18-year terms had been the norm all along, then the current court would have 5 GOP nominees and 4 Democratic nominees, and Bush would be replacing the last Reagan pick this year. Of course, you could also do it in election years, but somehow I think politicians would prefer off-years for court fights.

The Justices would be more recently picked; today the appointments range from 11 to 30-plus years ago. A lot of the Senate wasn't even there when the last Supreme (Breyer) was appointed, back in 1993. Which is of course two additional problems: Senators are often elected for their views on the judiciary but have had little effect on the Supreme Court since 1993, and all the Senators elected in 1994 or beyond have no personal experience in working on a Supreme Court appointment.

This issue of terms, if it gains any real steam at all, is likely to come down on a partisan basis. After all, there hasn't been an appointment since 1993. That means neither the election nor re-election of George W. Bush has had an effect on the membership of the Court. Neither did the landslide election of 1994 nor the historic mid-term gains of 2002 have an effect on it. Now, to be clear, the court has seven R-appointees and only two D-appointees, but that doesn't tell the whole picture. Four of the Republican-appointees are pro-Roe, three of the Republican-appointees are pro-partial-birth abortion, and so forth. So while it is true that Republican-appointees have a controlling supermajority on the Court, that doesn't seem to have a real effect on their decisions.

Bush-haters will look at the issue and think "Bush would've made appointments under this system, so I oppose it," without realizing that it would have also neutralized Nixon and Reagan appointments, and doubled Clinton appointments. Bush-supporters are likely to be favorable to it for the same reason that it would have increased Bush's appointment power. Of course, any Constitutional amendment now would give Bush at most two appointments, and more likely one or none. So the President Bush-as-focal-point theory is perhaps overstated.

But it's still likely that the biggest Court-haters - who for now are coalesced as the social conservatives and the Green-anarchists - are going to appreciate some movement to reform the Court. The problem is that it doesn't address the ideological complaints about the Court. The social conservatives are fairly substantial as a group, but they want a reform to circumscribe the power of courts to rule on a host of issues. The Green-anarchists are particularly small, and their pet issues about environmental rights and repealing corporate rights are unlikely to get any hearing outside the far-left or the ideologically anti-establishment. I don't see much reason either of these groups would really care about term limits.

The only reason is practical. You can't do it for or against Bush, because it's too late for this amendment to affect his Presidency very much. You can't do it for social conservatism or Green-anarchism because changing the spacing of appointments wouldn't change the decisions or the power of courts. You have to want it simply because it would be a common-sense, practical reform. Is there enough potential support for such a change? I dunno.

You might be able to get Congress to pass it, and from there you just have to get enough state legislators to buy it. Could it pass without a major move from public opinion? Maybe, but it seems more than likely you'd need some catalyst to push it - like an elder Justice going senile or having a stroke and speaking gibberish, or something. Until there's some major reason to change and some catalyst or icon to rally against, I don't think there's quite enough popular support to push this reform.



UPDATE: This is now posted on my website here and is listed under editorial issue articles here.

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