You can tell when a reform starts to gathering real momentum when new, bad critiques start rolling out. Specifically when the forces arrayed against a proposal stop laughing about how impossible it is and start grasping for new reasons to block the runaway train of progress. For Supreme Court term limits, that shift is happening right now.
Last week, Rep. Hank Johnson introduced legislation to impose a functional 18-year term limit on Supreme Court justices. Versions of this bill have come up before, and after a hearty round of “but the Constitution says justices serve for life!” the proposal quietly dies on the congressional vine. This year, something seems to have changed. A majority of the public have supported term limit proposals for the justices for a few years now, but recently that support skyrocketed to over 70 percent. While expanding and packing the Supreme Court remains mired below 50 percent approval, term limits cuts across party lines. This GOP Congress won’t take action on Johnson’s bill, but if this trend holds, it’s only a matter of time.
And so comes the shift in criticism. The voices shrugging it off as unconstitutional are still out there, of course, but now we’ve got a new flavor of critique. The National Law Journal published a piece from Emory law professor Michael J. Broyde, arguing that “Term Limits Won’t Fix the Supreme Court or the Confirmation Process.” Right or wrong, it’s a significant development to see lengthy broadsides that seem to accept the premise that term limits are possible.
That said, he’s also wrong.
Professor Broyde argues that term limits can’t depoliticize the Supreme Court because the real issue is that the Court has too much power to decide deeply political issues. Broyde does not have an answer to curb the Supreme Court’s power, making this a hell of a non-sequitur for a piece on judicial reform, but set that to one side.
He’s right that term limits won’t transform the Supreme Court into an apolitical institution, but this misdiagnoses the problem. Everything else he argues flows from this misstep.
Any significant effort to make the Court less powerful would gut the institution’s constitutional role. Jurisdiction stripping moves at the margins could improve the balance of power, but by and large the Supreme Court will necessarily enjoy extraordinary power. And given that reality, the Supreme Court is bound to be political. But politics isn’t the problem, it’s that the Court delivers unrepresentative politics. America litigated this 250 years ago and decided it didn’t like politics without representation — and yet arguably its most powerful pillar of government runs like the House of Lords.
The problem with the Court is that it delivers deadhand political influence based on actuarial tables and luck. Jimmy Carter served four years and appointed zero justices. Donald Trump got through four years with three. By design, the Supreme Court should operate as a lagging indicator of political consensus, as represented by the sensibilities of the president and Senate. That’s the purpose of that check and balance. The modern Supreme Court is unmoored from public sentiment. Two-thirds of the last 18 years have been Democratic administrations, and yet the Court is two-thirds Republican. The goal of term limits is not to cure politics, it’s to make sure the politics tracks the country over time. Which is the only kind of politics anyone should tolerate from an unelected body.
This misdiagnoses compounds when it gets into specifics:
Indeed, term limits might make the process more partisan by turning every presidential election into a guaranteed two-seat Supreme Court election. Under the current system, vacancies are uncertain. Under an 18-year system, they become campaign promises. Every voter would know that the next president gets two appointments. Interest groups would plan around that certainty, and judicial nominations would become even more central to presidential politics.
Good. The Supreme Court shapes the fabric of the nation. The justices do this based on applying the law, guided by judicial philosophies that are political, but ideally not partisan. Which is to say, it’s one thing to be a consistent originalist, and another to make up different rules to help your own party. But in any event, the composition of the Supreme Court should be a political issue for voters. Obscuring the role of the electorate in indirectly deciding the Supreme Court roster is a problem. Because it’s already a factor in the vote, it’s just that right now seats materialize on a schedule dictated by a justice’s cholesterol. And if it’s not a factor of health, it’s a matter of justices timing their retirements to lock in partisan gains to artificially shift the Court’s balance out of step with the results at the ballot box.
Reducing a justice’s tenure from 30 years to 18 would not make these fights disappear. Would senators who opposed Amy Coney Barrett have supported her if she were to serve “only” 18 years? Would Republicans have rushed to confirm Merrick Garland if his term were set to expire in 18 years? Of course not. Eighteen years is still a long time. The same ideological stakes would remain. The same advocacy groups would mobilize. The same presidents would seek nominees aligned with their constitutional vision. The same senators would use whatever leverage the Constitution gives them.
In 2016, Republicans explicitly stated that they would keep Scalia’s seat vacant for four years if Hillary Clinton won. This fact is damning for Broyde’s argument, because it demonstrates the how the political issue has metastasized into a cynical drive for deadhand influence. It wasn’t about how long 63-year-old Merrick Garland would serve, it was about the prospect of how long a 40-something Neil Gorsuch could serve. The fact that nation’s arbiter of constitutionality can be held hostage in a scramble for today’s politicians to capture extra decades of power down the road is a problem. Term limits remove this temptation.
There is also a second problem, less discussed but just as serious: What exactly are former justices supposed to do after their 18 years end?
Today, justices generally leave the court late in life and retire from full professional activity. But under a fixed-term system, many would depart while still healthy, ambitious and professionally active. A justice appointed at 50 would finish at 68. A justice appointed at 45 would finish at 63. These are not retirement ages for elite lawyers. They are prime earning years.
First, and I hate to be the one to break this, lawyers retire. The standard retirement age is still 65. Second, and more important, term limits might mean we stop appointing 45-year-olds in the first place! Life tenure is the whole reason Supreme Court nominees keep getting younger. The process is an actuarial roulette wheel with parties seeking the youngest ideologically reliable nominee that won’t get laughed at. Term limits removes this perverse incentive and opens the process back up to more seasoned nominees who — to answer Broyde’s concern — would not leave the Court until well past those last possible years of practice.
The predictable result is a Supreme Court revolving door. Former justices would be extraordinarily attractive to major law firms, corporate clients, arbitration shops, appellate boutiques, universities, think tanks and political organizations. Their value would not come merely from legal skill. It would come from prestige, relationships, inside knowledge of the court’s institutional culture and the ability to shape legal strategy from the highest perch in American law.
Here’s the thing: that won’t happen. You know how we know this won’t happen? Breyer, Kennedy, Souter, O’Connor… think back to every Supreme Court justice that you remember leaving the court upright. Exactly none of them walked across the street to a firm. In a law review article, Broyde expounded on this claim by pointing to empirical data of state court judges returning to practice after leaving office which is, as they say, like comparing shooting a bullet to throwing it. U.S. Supreme Court justices hold one of the most consequential jobs in the country, they make millions in royalties for writing tell-all-but-not-actually-tell-anything books right now. They’re not going to trade a path where they make several million a year churning out children’s books to bill 3600 hours at Kirkland. The article spins hypotheticals about justices tempted to trade their ethics for a future paycheck, but justices are free to leave NOW. The revolving door is oiled and ready and retiring justices keep refusing to take it.
In fact, the only justices taking money from powerful litigants under the table are the longest serving ones. The corruption risk the essay invents for a hypothetical future is, in the present tense, a feature of life tenure.
This also ignores that many of the more serious term limits proposals maintain a role for the justices limited out of the panel. To make these proposals constitutional, they often amend the structure of the Court’s appellate jurisdiction — which is defined by statute, not the Constitution — to only allow the most recent justices to hear those cases, while the full body would still hear original jurisdiction cases like lawsuits between the states. And they remain as the bullpen to return to the active panel if a vacancy arises too. All good reasons not to try to return to the hustle of Biglaw at 65 and almost two decades out of practice.
That prospect should trouble conservatives and liberals alike. Imagine a former justice joining a firm that regularly appears before the Supreme Court or advises clients on cases designed for eventual Supreme Court review. Even if the former justice never signs a brief, everyone would understand what is being purchased: access, insight and influence. Public confidence in the court would suffer.
You don’t have to imagine it, that’s the current job description of a Supreme Court clerk. Clerks rotate off the Court and straight into the elite appellate bar, where firms pay signing bonuses reaching $400,000 specifically because that clerk knows how the sausage gets made. Justices have a much higher profile than a clerk, but the perception of clients buying “access, insight and influence” is already here. Besides, would a former justice really add much to the equation? They’ve spent almost two decades convinced they’re the smartest one in the room… that doesn’t translate well to advocacy.
The real source of our confirmation conflict is not the length of judicial service. It is judicial power, constitutional disagreement and national polarization. Term limits address only the easiest part of the problem to count. They do not reduce the court’s power, resolve interpretive disagreement or make Americans less divided.
He concludes by claiming term limits “merely move” the problem without offering any suggestion to solve it. Thankfully, term limits don’t need to solve “judicial power, constitutional disagreement and national polarization” — at least not directly. All they need to do is bring the Supreme Court back into line with the foundational ethos of America, as a nation based, at increasing levels of distance, upon the will of the electorate. The Supreme Court should stretch back in time to temper the whims of the present, but it should be consistent. If the people vote for one general thrust of judicial philosophy for the better part of two decades, then the Court should reflect that.
Again, the story isn’t that the critique of term limits is bad. That was inevitable. But it’s significant that term limits proposals are facing complaints beyond smug dismissal and at least we’ve moved beyond just acting like term limits exist outside the realm of the possible.
Term Limits Won’t Fix the Supreme Court or the Confirmation Process [National Law Journal]
The post Broadside Against Supreme Court Term Limits Misses The Mark appeared first on Above the Law.
You can tell when a reform starts to gathering real momentum when new, bad critiques start rolling out. Specifically when the forces arrayed against a proposal stop laughing about how impossible it is and start grasping for new reasons to block the runaway train of progress. For Supreme Court term limits, that shift is happening right now.
Last week, Rep. Hank Johnson introduced legislation to impose a functional 18-year term limit on Supreme Court justices. Versions of this bill have come up before, and after a hearty round of “but the Constitution says justices serve for life!” the proposal quietly dies on the congressional vine. This year, something seems to have changed. A majority of the public have supported term limit proposals for the justices for a few years now, but recently that support skyrocketed to over 70 percent. While expanding and packing the Supreme Court remains mired below 50 percent approval, term limits cuts across party lines. This GOP Congress won’t take action on Johnson’s bill, but if this trend holds, it’s only a matter of time.
And so comes the shift in criticism. The voices shrugging it off as unconstitutional are still out there, of course, but now we’ve got a new flavor of critique. The National Law Journal published a piece from Emory law professor Michael J. Broyde, arguing that “Term Limits Won’t Fix the Supreme Court or the Confirmation Process.” Right or wrong, it’s a significant development to see lengthy broadsides that seem to accept the premise that term limits are possible.
That said, he’s also wrong.
Professor Broyde argues that term limits can’t depoliticize the Supreme Court because the real issue is that the Court has too much power to decide deeply political issues. Broyde does not have an answer to curb the Supreme Court’s power, making this a hell of a non-sequitur for a piece on judicial reform, but set that to one side.
He’s right that term limits won’t transform the Supreme Court into an apolitical institution, but this misdiagnoses the problem. Everything else he argues flows from this misstep.
Any significant effort to make the Court less powerful would gut the institution’s constitutional role. Jurisdiction stripping moves at the margins could improve the balance of power, but by and large the Supreme Court will necessarily enjoy extraordinary power. And given that reality, the Supreme Court is bound to be political. But politics isn’t the problem, it’s that the Court delivers unrepresentative politics. America litigated this 250 years ago and decided it didn’t like politics without representation — and yet arguably its most powerful pillar of government runs like the House of Lords.
The problem with the Court is that it delivers deadhand political influence based on actuarial tables and luck. Jimmy Carter served four years and appointed zero justices. Donald Trump got through four years with three. By design, the Supreme Court should operate as a lagging indicator of political consensus, as represented by the sensibilities of the president and Senate. That’s the purpose of that check and balance. The modern Supreme Court is unmoored from public sentiment. Two-thirds of the last 18 years have been Democratic administrations, and yet the Court is two-thirds Republican. The goal of term limits is not to cure politics, it’s to make sure the politics tracks the country over time. Which is the only kind of politics anyone should tolerate from an unelected body.
This misdiagnoses compounds when it gets into specifics:
Indeed, term limits might make the process more partisan by turning every presidential election into a guaranteed two-seat Supreme Court election. Under the current system, vacancies are uncertain. Under an 18-year system, they become campaign promises. Every voter would know that the next president gets two appointments. Interest groups would plan around that certainty, and judicial nominations would become even more central to presidential politics.
Good. The Supreme Court shapes the fabric of the nation. The justices do this based on applying the law, guided by judicial philosophies that are political, but ideally not partisan. Which is to say, it’s one thing to be a consistent originalist, and another to make up different rules to help your own party. But in any event, the composition of the Supreme Court should be a political issue for voters. Obscuring the role of the electorate in indirectly deciding the Supreme Court roster is a problem. Because it’s already a factor in the vote, it’s just that right now seats materialize on a schedule dictated by a justice’s cholesterol. And if it’s not a factor of health, it’s a matter of justices timing their retirements to lock in partisan gains to artificially shift the Court’s balance out of step with the results at the ballot box.
Reducing a justice’s tenure from 30 years to 18 would not make these fights disappear. Would senators who opposed Amy Coney Barrett have supported her if she were to serve “only” 18 years? Would Republicans have rushed to confirm Merrick Garland if his term were set to expire in 18 years? Of course not. Eighteen years is still a long time. The same ideological stakes would remain. The same advocacy groups would mobilize. The same presidents would seek nominees aligned with their constitutional vision. The same senators would use whatever leverage the Constitution gives them.
In 2016, Republicans explicitly stated that they would keep Scalia’s seat vacant for four years if Hillary Clinton won. This fact is damning for Broyde’s argument, because it demonstrates the how the political issue has metastasized into a cynical drive for deadhand influence. It wasn’t about how long 63-year-old Merrick Garland would serve, it was about the prospect of how long a 40-something Neil Gorsuch could serve. The fact that nation’s arbiter of constitutionality can be held hostage in a scramble for today’s politicians to capture extra decades of power down the road is a problem. Term limits remove this temptation.
There is also a second problem, less discussed but just as serious: What exactly are former justices supposed to do after their 18 years end?
Today, justices generally leave the court late in life and retire from full professional activity. But under a fixed-term system, many would depart while still healthy, ambitious and professionally active. A justice appointed at 50 would finish at 68. A justice appointed at 45 would finish at 63. These are not retirement ages for elite lawyers. They are prime earning years.
First, and I hate to be the one to break this, lawyers retire. The standard retirement age is still 65. Second, and more important, term limits might mean we stop appointing 45-year-olds in the first place! Life tenure is the whole reason Supreme Court nominees keep getting younger. The process is an actuarial roulette wheel with parties seeking the youngest ideologically reliable nominee that won’t get laughed at. Term limits removes this perverse incentive and opens the process back up to more seasoned nominees who — to answer Broyde’s concern — would not leave the Court until well past those last possible years of practice.
The predictable result is a Supreme Court revolving door. Former justices would be extraordinarily attractive to major law firms, corporate clients, arbitration shops, appellate boutiques, universities, think tanks and political organizations. Their value would not come merely from legal skill. It would come from prestige, relationships, inside knowledge of the court’s institutional culture and the ability to shape legal strategy from the highest perch in American law.
Here’s the thing: that won’t happen. You know how we know this won’t happen? Breyer, Kennedy, Souter, O’Connor… think back to every Supreme Court justice that you remember leaving the court upright. Exactly none of them walked across the street to a firm. In a law review article, Broyde expounded on this claim by pointing to empirical data of state court judges returning to practice after leaving office which is, as they say, like comparing shooting a bullet to throwing it. U.S. Supreme Court justices hold one of the most consequential jobs in the country, they make millions in royalties for writing tell-all-but-not-actually-tell-anything books right now. They’re not going to trade a path where they make several million a year churning out children’s books to bill 3600 hours at Kirkland. The article spins hypotheticals about justices tempted to trade their ethics for a future paycheck, but justices are free to leave NOW. The revolving door is oiled and ready and retiring justices keep refusing to take it.
In fact, the only justices taking money from powerful litigants under the table are the longest serving ones. The corruption risk the essay invents for a hypothetical future is, in the present tense, a feature of life tenure.
This also ignores that many of the more serious term limits proposals maintain a role for the justices limited out of the panel. To make these proposals constitutional, they often amend the structure of the Court’s appellate jurisdiction — which is defined by statute, not the Constitution — to only allow the most recent justices to hear those cases, while the full body would still hear original jurisdiction cases like lawsuits between the states. And they remain as the bullpen to return to the active panel if a vacancy arises too. All good reasons not to try to return to the hustle of Biglaw at 65 and almost two decades out of practice.
That prospect should trouble conservatives and liberals alike. Imagine a former justice joining a firm that regularly appears before the Supreme Court or advises clients on cases designed for eventual Supreme Court review. Even if the former justice never signs a brief, everyone would understand what is being purchased: access, insight and influence. Public confidence in the court would suffer.
You don’t have to imagine it, that’s the current job description of a Supreme Court clerk. Clerks rotate off the Court and straight into the elite appellate bar, where firms pay signing bonuses reaching $400,000 specifically because that clerk knows how the sausage gets made. Justices have a much higher profile than a clerk, but the perception of clients buying “access, insight and influence” is already here. Besides, would a former justice really add much to the equation? They’ve spent almost two decades convinced they’re the smartest one in the room… that doesn’t translate well to advocacy.
The real source of our confirmation conflict is not the length of judicial service. It is judicial power, constitutional disagreement and national polarization. Term limits address only the easiest part of the problem to count. They do not reduce the court’s power, resolve interpretive disagreement or make Americans less divided.
He concludes by claiming term limits “merely move” the problem without offering any suggestion to solve it. Thankfully, term limits don’t need to solve “judicial power, constitutional disagreement and national polarization” — at least not directly. All they need to do is bring the Supreme Court back into line with the foundational ethos of America, as a nation based, at increasing levels of distance, upon the will of the electorate. The Supreme Court should stretch back in time to temper the whims of the present, but it should be consistent. If the people vote for one general thrust of judicial philosophy for the better part of two decades, then the Court should reflect that.
Again, the story isn’t that the critique of term limits is bad. That was inevitable. But it’s significant that term limits proposals are facing complaints beyond smug dismissal and at least we’ve moved beyond just acting like term limits exist outside the realm of the possible.
Term Limits Won’t Fix the Supreme Court or the Confirmation Process [National Law Journal]
