Why do Supreme Court justices serve for life? That’s not an invitation to debate the meaning of the good behavior clause, I mean… why life? The elementary school civics answer is that the Framers wanted to shield the judiciary from the whims of politicians retaliating against disfavored opinions. But if that’s the only justification, fixed terms accomplish this just as well. And if both options reasonably accomplish that goal, it’s time for a serious discussion about which best serves the country.
Emory law professor Michael Broyde and I have recently exchanged back-and-forth about term limits. He thinks they’re bad. I think they’re a reform that balances the Court’s constitutional protections while resolving a litany of harms that have contributed to the Court’s deepening legitimacy crisis. Over the weekend, he published a reply.
First, the common ground. Broyde’s initial article argued that term limits would not depoliticize the courts or lower the stakes of confirmation battles. We both agree on that. Term limits do not (at least directly) force the parties to start selecting dispassionate judge bots — nor should it. If American law is the cosmos, the Supreme Court is the singularity at the heart of a supermassive black hole. It’s where the barriers between law and politics become fuzzy because the Framers (or at least John Marshall) decided that the Supreme Court decides what law is.
But just because the Court is inevitably political doesn’t mean the manner by which it practices politics is in the nation’s best interests.
Term limits are not a reform that removes politics from the court. They are a reform that regularizes politics at the court. I am not sure this is any real improvement.
Well, first off: does it make it worse? The Court seems awfully political right now and the public tends to agree. But assuming term limits have any impact on public perception of Court politics, this would be a positive development. Right now, the impact any presidential election has exists behind a veil of ignorance. A given election might prove existential to the fabric of the Republic or a SCOTUS nothing burger. We have no guarantees and we stake our constitutional framework on a justice’s cholesterol level or propensity to retire for purely partisan reasons. With a term limited Court, presidential elections force voters to consider the Court and the role it plays in the national fabric. It doesn’t make justices directly answerable to the public, but as a key factor in shaping the policy of the nation, the Supreme Court is a subject that deserves more than tangential engagement.
Term limits do indeed regularize politics. And in politics, as in digestive health, regularity is a good thing.
It also returns symmetry to the process. When 2/3rds of the presidents over the last 18 years are Democrats and 2/3rds of the Supreme Court are Republican appointees, something is off. And this disconnect can compound over time, exacerbated by strategic retirements locking in deadhand minority influence. Thankfully, most Supreme Court justices are too egomaniacal to think they can be replaced, but the hip, new trend of bequeathing seats risks transforming the Court into a House of Lords running on philosophically hereditary peerage.
An 18-year term is still a generation. A justice serving 18 years can reshape doctrine on abortion, guns, religion, race, elections, administrative power, presidential authority, and free speech.
Absolutely true, but to invoke the old adage from Justice Byron White, every time a new justice joins the Court, “it’s a different court.” While every individual judge is around for 18 years, their influence — and maybe even their jurisprudence — will be influenced by working with nine new justices over their tenure. Sandra Day O’Connor used to talk about how her time working with Thurgood Marshall influenced how she evaluated issues even if it didn’t reverse her vote. An 18-year term is not a generation frozen in amber, but one player in 18 years of constant evolution.
One of my arguments against Broyde’s fear that term limits create a revolving door for justices is that we’ve never actually seen — in the modern era — a justice retire and go back to the private sector.
But that comparison proves too little. Those justices retired under life tenure. They generally left late in life, often when they were ready to step back from full-time work. That is not the world term limits would create.
They did retire late in life. Though under term limits, nominees would likely skew older at the outset without the perverse incentive to extend deadhand influence by finding a candidate in their 40s. This means justices limited out of office will still tend to be near or past retirement age after serving. Merrick Garland was not “old” but let’s be honest, a key factor in Obama picking him for that role was offering Republicans a nominee that would be less likely to stick around. Garland is 13 years older than Elena Kagan and was nominated six years into her tenure. That was a proposed compromise pick, but in a world of term limits, older and more experienced nominees like Garland should become the norm.
Plus, there’s a reason why John Quincy Adams is the only president to go out and get another lesser elected office afterward.[1] Barack Obama was, what, 55 when he left the presidency? He could’ve walked into another office. At a certain point, once you’ve sat on the mountaintop, everything else feels like a waste of time. A Supreme Court justice heading to a firm where clients yell at you and the equity partners in M&A make six times your money? I’m not seeing it.
Allow me to weaken my own revolving door argument a tad. One reason the current crop of retired justices don’t go back to the private sector is that they have multimillion dollar income streams writing books and giving speeches. Collecting a few million to let someone ghostwrite ultimately unrevealing memoirs beats billing 3000 hours. But as retired justices become as common as air molecules under term limits, the market for a former justice’s brain droppings might dry up. On the other hand, the supposed value that a former justice — a lawyer at least 18 (and probably many more) years divorced from practice — could provide the private sector would also diminish when they’re a dime a dozen. So this might be a wash.
And what’s to fear from a revolving door for justices anyway? That they’ll undermine the Court by — genuinely or not — shading their opinions for the benefit of their future personal financial interests? Clarence Thomas collected over a half million dollars in gifts and vacations from donors and activists with interests before the Court and didn’t report it for years. According to documents uncovered by ProPublica, the Thomas gravy train started in earnest suspiciously after he intimated that he might give up his seat if he didn’t start getting more money. If the fear is that justices will give the appearance of corruption for compensation, we don’t need to wait for retirement, they’re already doing it now!
Hey, maybe telling them that they can get a fat paycheck when they retire from one of the many firms doing appellate work will stop them trying to get rich while on the bench. Because right now the hypothetical corruption Professor Broyde fears is a present-tense feature of life tenure.
As I have argued elsewhere, the better comparison is to judges who must leave a prestigious court because a term or age limit requires it. Bankruptcy judges in important districts with 14-year terms and state supreme court justices subject to age or term limits from major states nearly always continue their legal careers in Big Law. There is no reason to assume former Supreme Court justices would be uniquely immune from those incentives.
I guess the question is: what mischief has this caused these other courts? Do we as a society think bankruptcy courts or state supreme courts are illegitimate because former members have taken law firm jobs? I have concerns about revolving doors — especially among regulators — but a judge going back to private practice doesn’t seem, based on existing examples, nearly as fraught. And at the aforementioned “Supreme Court singularity,” where justices act much closer to politicians in robes, the revolving door doesn’t seem as much of a risk because it’s impossible to imagine Sam Alito voting to legalize abortion because Perkins Coie teases a sweet Of Counsel role. The justices just aren’t wired that way. For better or worse, they’re too self-important for that.
If the answer [to who can impose term limits] is Congress by statute, the danger is obvious. If Congress can impose 18-year terms, why not nine year terms? Why not 18 months? Why not 18-day terms? Why not some other structure designed to weaken a court that Congress and the president dislike? Or better yet, treat the court like all presidential appointments and give them four year terms that expire when the president leaves office. Giving the political branches authority to decide how long justices sit on the court is not a technical adjustment. It is a major change in the balance among the branches. It will destroy the court as we know it.
This lands harder if you overlook Congress sitting on a veritable Death Star of levers it could wield over the Supreme Court that no one disputes. Could Congress, by statute, expand the Supreme Court to 13 justices? Or 15? Or 41? Of course! Can it strip the Court’s appellate jurisdiction to wall off entire categories of cases? Yeah… as long as it doesn’t encroach upon original jurisdiction. The Constitution hands the political branches an arsenal “to weaken a court that Congress and the president dislike,” and the only check — fittingly for a nation founded on democratic principles — is that the electorate will resist if Congress goes too far.
Broyde cites, as an example of a dangerous legislative power, the proposal that the Virginia legislature respond to its state supreme court’s comically ill-reasoned redistricting ruling by reducing the mandatory retirement age to immediately purge the current justices. But the thing is, the Virginia legislature does have that power! The Virginia constitution explicitly grants this authority to the legislature. Yet, despite this undisputed power, the supreme court spit in the eye of the legislature anyway, and the legislature did not invoke this power in retaliation because it — correctly I’d argue — deemed it improper and beyond what the electorate would support. That’s how the guardrails are supposed to work.
Which gets to a fundamental disconnect between our positions. Broyde envisions term limits as upsetting a status quo that he finds acceptable (or at least not problematic enough to endorse any particular reform). I take future reform as a given in a world where public polling shows a growing consensus that the Supreme Court has torched its own legitimacy. In 2020, polls had Supreme Court approval around 70 percent. Now, registered voters with a “great deal” or “quite a bit” of faith in the Supreme Court is down to a combined 22 percent. There are chronic diseases that poll better. I advocate for term limits because it’s a less dangerous reform than expansion. I think court expansion spirals into a tit-for-tat cycle just like we’ve seen with redistricting — and one that is presumptively asymmetrical because the odds of either party achieving the “trifecta” required to expand the Court (based on present trends) favors Republicans over time.
If we were honest, we would say all of this is being done because some people do not like decisions issued.
This is why it’s so critical to place term limits in the context of court expansion. Court expansion is done because some people don’t like the decisions, and it immediately changes the decisions getting made. Term limits return the Court to a lagging indicator of the consensus of the electorate. It does not immediately change opinions, it just sets the Court on a course in line with a reflected will of the preceding 18 years. That might change decisions over the long-term, but it will do it slowly and as an expression of the will of a generation of voters. And if that will changes in the future, the Court will — gradually — change too.
Summing up his position:
A reform that regularizes appointments but intensifies presidential-court politics, preserves confirmation warfare, creates a lucrative market for ex-justices, and gives Congress power to tinker with the court’s structure is not obviously a cure. It may be an improvement in one respect but it is a huge danger in another. On the whole, this is a bad idea.
For my recap: intensifying presidential-court politics is good. The Court matters deeply to American voters and yet it’s so barely understood that most people can’t name a single justice. Voters should be incentivized to understand it and discuss it openly as a factor in presidential politics. Term limits will preserve confirmation warfare, but this isn’t unique to either of our arguments, so it can be disregarded. Does it create a lucrative market for ex-justices? One, probably not because most will continue to prefer other pursuits (including retirement) than active litigation. Two, even if it did, this does not erode the legitimacy of other courts (and there’s not much more legitimacy to lose for the Supreme Court anyway). Three, there’s a lucrative and active market for current justices that at least one has tied directly to his feeling that he needed more money to justify staying on the Court. And Congress has extensive power to tinker with the Court’s structure now, and term limits is both comparatively less intrusive and possibly the only salve that can avoid a more destructive option.
On top of this, the advantage of returning the Court to an institution at least indirectly responsive to consensus politics repairs its important and presently sagging legitimacy. Avoiding the risks of expansion and shoring up its legitimacy would outweigh any hypothetical risk of a revolving door to private law firms.
The Framers envisioned sober-minded judges that needed to be shielded from the whims of politics, but the multi-decade right-wing temper tantrum against the Warren Court reimagined life tenure into a sword as well as a shield. It’s now embraced as a tool to calcify scarce partisan victories to entrench a minority viewpoint that can’t consistently win at the ballot box. Seen this way, life tenure converts the Court into an unchecked superlegislature with seats held as political currency — investments to be held to hedge against bad times until they can be exchanged. Broyde even agrees that term limits could “limit strategic retirement,” but underplays the importance this plays in restoring public faith by removing an exploit of recent invention that delegitimizes the Court. If nerfing the value of a strategic retirement was the only advantage of term limits — and it’s not — that would be worth it. The public doesn’t need to see the Court as apolitical, but it does need to see it as small-d democratically political.
Professor Broyde quotes William Brennan explaining that life tenure exists to insulate the justices from politics. Term limits do this, giving justices an 18-year bubble to work, free from fear of retaliatory termination.
But we also need to also consider insulating the nation from the politics of the justices.
Term Limits Won’t Fix the Supreme Court or the Confirmation Process [National Law Journal]
Broadside Against Supreme Court Term Limits Misses The Mark [Above the Law]
Supreme Court Term Limits Are Not a Cure-All: They Are Extremely Unwise if Enacted by Statute [National Law Journal]
[1]Andrew Johnson went back to the Senate, but he never actually ran for president — he couldn’t even get a nomination as the incumbent — and this was before the Seventeenth Amendment so the Senate wasn’t really an election anyway, but what the hell we’ll count him too
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
The post Supreme Court Term Limits Are The Least Dangerous, Most Necessary Reform On The Menu appeared first on Above the Law.
Why do Supreme Court justices serve for life? That’s not an invitation to debate the meaning of the good behavior clause, I mean… why life? The elementary school civics answer is that the Framers wanted to shield the judiciary from the whims of politicians retaliating against disfavored opinions. But if that’s the only justification, fixed terms accomplish this just as well. And if both options reasonably accomplish that goal, it’s time for a serious discussion about which best serves the country.
Emory law professor Michael Broyde and I have recently exchanged back-and-forth about term limits. He thinks they’re bad. I think they’re a reform that balances the Court’s constitutional protections while resolving a litany of harms that have contributed to the Court’s deepening legitimacy crisis. Over the weekend, he published a reply.
First, the common ground. Broyde’s initial article argued that term limits would not depoliticize the courts or lower the stakes of confirmation battles. We both agree on that. Term limits do not (at least directly) force the parties to start selecting dispassionate judge bots — nor should it. If American law is the cosmos, the Supreme Court is the singularity at the heart of a supermassive black hole. It’s where the barriers between law and politics become fuzzy because the Framers (or at least John Marshall) decided that the Supreme Court decides what law is.
But just because the Court is inevitably political doesn’t mean the manner by which it practices politics is in the nation’s best interests.
Term limits are not a reform that removes politics from the court. They are a reform that regularizes politics at the court. I am not sure this is any real improvement.
Well, first off: does it make it worse? The Court seems awfully political right now and the public tends to agree. But assuming term limits have any impact on public perception of Court politics, this would be a positive development. Right now, the impact any presidential election has exists behind a veil of ignorance. A given election might prove existential to the fabric of the Republic or a SCOTUS nothing burger. We have no guarantees and we stake our constitutional framework on a justice’s cholesterol level or propensity to retire for purely partisan reasons. With a term limited Court, presidential elections force voters to consider the Court and the role it plays in the national fabric. It doesn’t make justices directly answerable to the public, but as a key factor in shaping the policy of the nation, the Supreme Court is a subject that deserves more than tangential engagement.
Term limits do indeed regularize politics. And in politics, as in digestive health, regularity is a good thing.
It also returns symmetry to the process. When 2/3rds of the presidents over the last 18 years are Democrats and 2/3rds of the Supreme Court are Republican appointees, something is off. And this disconnect can compound over time, exacerbated by strategic retirements locking in deadhand minority influence. Thankfully, most Supreme Court justices are too egomaniacal to think they can be replaced, but the hip, new trend of bequeathing seats risks transforming the Court into a House of Lords running on philosophically hereditary peerage.
An 18-year term is still a generation. A justice serving 18 years can reshape doctrine on abortion, guns, religion, race, elections, administrative power, presidential authority, and free speech.
Absolutely true, but to invoke the old adage from Justice Byron White, every time a new justice joins the Court, “it’s a different court.” While every individual judge is around for 18 years, their influence — and maybe even their jurisprudence — will be influenced by working with nine new justices over their tenure. Sandra Day O’Connor used to talk about how her time working with Thurgood Marshall influenced how she evaluated issues even if it didn’t reverse her vote. An 18-year term is not a generation frozen in amber, but one player in 18 years of constant evolution.
One of my arguments against Broyde’s fear that term limits create a revolving door for justices is that we’ve never actually seen — in the modern era — a justice retire and go back to the private sector.
But that comparison proves too little. Those justices retired under life tenure. They generally left late in life, often when they were ready to step back from full-time work. That is not the world term limits would create.
They did retire late in life. Though under term limits, nominees would likely skew older at the outset without the perverse incentive to extend deadhand influence by finding a candidate in their 40s. This means justices limited out of office will still tend to be near or past retirement age after serving. Merrick Garland was not “old” but let’s be honest, a key factor in Obama picking him for that role was offering Republicans a nominee that would be less likely to stick around. Garland is 13 years older than Elena Kagan and was nominated six years into her tenure. That was a proposed compromise pick, but in a world of term limits, older and more experienced nominees like Garland should become the norm.
Plus, there’s a reason why John Quincy Adams is the only president to go out and get another lesser elected office afterward.[1] Barack Obama was, what, 55 when he left the presidency? He could’ve walked into another office. At a certain point, once you’ve sat on the mountaintop, everything else feels like a waste of time. A Supreme Court justice heading to a firm where clients yell at you and the equity partners in M&A make six times your money? I’m not seeing it.
Allow me to weaken my own revolving door argument a tad. One reason the current crop of retired justices don’t go back to the private sector is that they have multimillion dollar income streams writing books and giving speeches. Collecting a few million to let someone ghostwrite ultimately unrevealing memoirs beats billing 3000 hours. But as retired justices become as common as air molecules under term limits, the market for a former justice’s brain droppings might dry up. On the other hand, the supposed value that a former justice — a lawyer at least 18 (and probably many more) years divorced from practice — could provide the private sector would also diminish when they’re a dime a dozen. So this might be a wash.
And what’s to fear from a revolving door for justices anyway? That they’ll undermine the Court by — genuinely or not — shading their opinions for the benefit of their future personal financial interests? Clarence Thomas collected over a half million dollars in gifts and vacations from donors and activists with interests before the Court and didn’t report it for years. According to documents uncovered by ProPublica, the Thomas gravy train started in earnest suspiciously after he intimated that he might give up his seat if he didn’t start getting more money. If the fear is that justices will give the appearance of corruption for compensation, we don’t need to wait for retirement, they’re already doing it now!
Hey, maybe telling them that they can get a fat paycheck when they retire from one of the many firms doing appellate work will stop them trying to get rich while on the bench. Because right now the hypothetical corruption Professor Broyde fears is a present-tense feature of life tenure.
As I have argued elsewhere, the better comparison is to judges who must leave a prestigious court because a term or age limit requires it. Bankruptcy judges in important districts with 14-year terms and state supreme court justices subject to age or term limits from major states nearly always continue their legal careers in Big Law. There is no reason to assume former Supreme Court justices would be uniquely immune from those incentives.
I guess the question is: what mischief has this caused these other courts? Do we as a society think bankruptcy courts or state supreme courts are illegitimate because former members have taken law firm jobs? I have concerns about revolving doors — especially among regulators — but a judge going back to private practice doesn’t seem, based on existing examples, nearly as fraught. And at the aforementioned “Supreme Court singularity,” where justices act much closer to politicians in robes, the revolving door doesn’t seem as much of a risk because it’s impossible to imagine Sam Alito voting to legalize abortion because Perkins Coie teases a sweet Of Counsel role. The justices just aren’t wired that way. For better or worse, they’re too self-important for that.
If the answer [to who can impose term limits] is Congress by statute, the danger is obvious. If Congress can impose 18-year terms, why not nine year terms? Why not 18 months? Why not 18-day terms? Why not some other structure designed to weaken a court that Congress and the president dislike? Or better yet, treat the court like all presidential appointments and give them four year terms that expire when the president leaves office. Giving the political branches authority to decide how long justices sit on the court is not a technical adjustment. It is a major change in the balance among the branches. It will destroy the court as we know it.
This lands harder if you overlook Congress sitting on a veritable Death Star of levers it could wield over the Supreme Court that no one disputes. Could Congress, by statute, expand the Supreme Court to 13 justices? Or 15? Or 41? Of course! Can it strip the Court’s appellate jurisdiction to wall off entire categories of cases? Yeah… as long as it doesn’t encroach upon original jurisdiction. The Constitution hands the political branches an arsenal “to weaken a court that Congress and the president dislike,” and the only check — fittingly for a nation founded on democratic principles — is that the electorate will resist if Congress goes too far.
Broyde cites, as an example of a dangerous legislative power, the proposal that the Virginia legislature respond to its state supreme court’s comically ill-reasoned redistricting ruling by reducing the mandatory retirement age to immediately purge the current justices. But the thing is, the Virginia legislature does have that power! The Virginia constitution explicitly grants this authority to the legislature. Yet, despite this undisputed power, the supreme court spit in the eye of the legislature anyway, and the legislature did not invoke this power in retaliation because it — correctly I’d argue — deemed it improper and beyond what the electorate would support. That’s how the guardrails are supposed to work.
Which gets to a fundamental disconnect between our positions. Broyde envisions term limits as upsetting a status quo that he finds acceptable (or at least not problematic enough to endorse any particular reform). I take future reform as a given in a world where public polling shows a growing consensus that the Supreme Court has torched its own legitimacy. In 2020, polls had Supreme Court approval around 70 percent. Now, registered voters with a “great deal” or “quite a bit” of faith in the Supreme Court is down to a combined 22 percent. There are chronic diseases that poll better. I advocate for term limits because it’s a less dangerous reform than expansion. I think court expansion spirals into a tit-for-tat cycle just like we’ve seen with redistricting — and one that is presumptively asymmetrical because the odds of either party achieving the “trifecta” required to expand the Court (based on present trends) favors Republicans over time.
If we were honest, we would say all of this is being done because some people do not like decisions issued.
This is why it’s so critical to place term limits in the context of court expansion. Court expansion is done because some people don’t like the decisions, and it immediately changes the decisions getting made. Term limits return the Court to a lagging indicator of the consensus of the electorate. It does not immediately change opinions, it just sets the Court on a course in line with a reflected will of the preceding 18 years. That might change decisions over the long-term, but it will do it slowly and as an expression of the will of a generation of voters. And if that will changes in the future, the Court will — gradually — change too.
Summing up his position:
A reform that regularizes appointments but intensifies presidential-court politics, preserves confirmation warfare, creates a lucrative market for ex-justices, and gives Congress power to tinker with the court’s structure is not obviously a cure. It may be an improvement in one respect but it is a huge danger in another. On the whole, this is a bad idea.
For my recap: intensifying presidential-court politics is good. The Court matters deeply to American voters and yet it’s so barely understood that most people can’t name a single justice. Voters should be incentivized to understand it and discuss it openly as a factor in presidential politics. Term limits will preserve confirmation warfare, but this isn’t unique to either of our arguments, so it can be disregarded. Does it create a lucrative market for ex-justices? One, probably not because most will continue to prefer other pursuits (including retirement) than active litigation. Two, even if it did, this does not erode the legitimacy of other courts (and there’s not much more legitimacy to lose for the Supreme Court anyway). Three, there’s a lucrative and active market for current justices that at least one has tied directly to his feeling that he needed more money to justify staying on the Court. And Congress has extensive power to tinker with the Court’s structure now, and term limits is both comparatively less intrusive and possibly the only salve that can avoid a more destructive option.
On top of this, the advantage of returning the Court to an institution at least indirectly responsive to consensus politics repairs its important and presently sagging legitimacy. Avoiding the risks of expansion and shoring up its legitimacy would outweigh any hypothetical risk of a revolving door to private law firms.
The Framers envisioned sober-minded judges that needed to be shielded from the whims of politics, but the multi-decade right-wing temper tantrum against the Warren Court reimagined life tenure into a sword as well as a shield. It’s now embraced as a tool to calcify scarce partisan victories to entrench a minority viewpoint that can’t consistently win at the ballot box. Seen this way, life tenure converts the Court into an unchecked superlegislature with seats held as political currency — investments to be held to hedge against bad times until they can be exchanged. Broyde even agrees that term limits could “limit strategic retirement,” but underplays the importance this plays in restoring public faith by removing an exploit of recent invention that delegitimizes the Court. If nerfing the value of a strategic retirement was the only advantage of term limits — and it’s not — that would be worth it. The public doesn’t need to see the Court as apolitical, but it does need to see it as small-d democratically political.
Professor Broyde quotes William Brennan explaining that life tenure exists to insulate the justices from politics. Term limits do this, giving justices an 18-year bubble to work, free from fear of retaliatory termination.
But we also need to also consider insulating the nation from the politics of the justices.
Term Limits Won’t Fix the Supreme Court or the Confirmation Process [National Law Journal]
Broadside Against Supreme Court Term Limits Misses The Mark [Above the Law]
Supreme Court Term Limits Are Not a Cure-All: They Are Extremely Unwise if Enacted by Statute [National Law Journal]
[1]Andrew Johnson went back to the Senate, but he never actually ran for president — he couldn’t even get a nomination as the incumbent — and this was before the Seventeenth Amendment so the Senate wasn’t really an election anyway, but what the hell we’ll count him too
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
