And so comes the shift in criticism. The voices shrugging it off as unconstitutional are still out there, of course, but now we\u2019ve got a new flavor of critique. The National Law Journal<\/em> published a piece from Emory law professor Michael J. Broyde, arguing that \u201cTerm Limits Won\u2019t Fix the Supreme Court or the Confirmation Process.\u201d Right or wrong, it\u2019s a significant development to see lengthy broadsides that seem to accept the premise that term limits are possible.<\/p>\n That said, he\u2019s also wrong.<\/p>\n Professor Broyde argues that term limits can\u2019t 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\u2019s power, making this a hell of a non-sequitur for a piece on judicial reform, but set that to one side. <\/p>\n He\u2019s right that term limits won\u2019t transform the Supreme Court into an apolitical institution, but this misdiagnoses the problem. Everything else he argues flows from this misstep.<\/p>\n Any significant effort to make the Court less powerful would gut the institution\u2019s 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\u2019t the problem, it\u2019s that the Court delivers unrepresentative politics<\/em>. America litigated this 250 years ago and decided it didn\u2019t like politics without representation \u2014 and yet arguably its most powerful pillar of government runs like the House of Lords. <\/p>\n The problem<\/em> 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\u2019s 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\u2019s to make sure the politics tracks the country over time. Which is the only kind of politics anyone should tolerate from an unelected body.<\/p>\n This misdiagnoses compounds when it gets into specifics:<\/p>\n 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.<\/p>\n<\/blockquote>\n 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<\/em> not partisan. Which is to say, it\u2019s one thing to be a consistent originalist, and another to make up different rules to help your own party<\/a>. 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\u2019s already a factor in the vote, it\u2019s just that right now seats materialize on a schedule dictated by a justice\u2019s cholesterol. And if it\u2019s not a factor of health, it\u2019s a matter of justices timing their retirements to lock in partisan gains to artificially shift the Court\u2019s balance out of step with the results at the ballot box. <\/p>\n Reducing a justice\u2019s 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 \u201conly\u201d 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.<\/p>\n<\/blockquote>\n In 2016, Republicans explicitly stated that they would keep Scalia\u2019s seat vacant for four years if Hillary Clinton won<\/a>. This fact is damning for Broyde\u2019s argument, because it demonstrates the how the political issue has metastasized into a cynical drive for deadhand influence. It wasn\u2019t 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\u2019s arbiter of constitutionality can be held hostage in a scramble for today\u2019s politicians to capture extra decades of power down the road is a problem. Term limits remove this temptation. <\/p>\n 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?<\/p>\n 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.<\/p>\n<\/blockquote>\n 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\u2019t get laughed at. Term limits removes this perverse incentive and opens the process back up to more seasoned nominees who \u2014 to answer Broyde\u2019s concern \u2014 would not leave the Court until well past those last possible years of practice.<\/p>\n 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\u2019s institutional culture and the ability to shape legal strategy from the highest perch in American law.<\/p>\n<\/blockquote>\n Here\u2019s the thing: that won\u2019t happen. You know how we know this won\u2019t happen? Breyer, Kennedy, Souter, O\u2019Connor\u2026 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<\/a>, 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\u2019re not going to trade a path where they make several million a year churning out children\u2019s 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.<\/p>\n In fact, the only justices taking money from powerful litigants under the table are the longest<\/a> serving<\/a> ones<\/a>. The corruption risk the essay invents for a hypothetical future is, in the present tense, a feature of life tenure.<\/p>\n 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\u2019s appellate jurisdiction \u2014 which is defined by statute, not the Constitution \u2014 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.<\/p>\n 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.<\/p>\n<\/blockquote>\n You don\u2019t have to imagine it, that\u2019s 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 \u201caccess, insight and influence\u201d is already here. Besides, would a former justice really add much to the equation? They\u2019ve spent almost two decades convinced they\u2019re the smartest one in the room\u2026 that doesn\u2019t translate well to advocacy.<\/p>\n 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\u2019s power, resolve interpretive disagreement or make Americans less divided.<\/p>\n<\/blockquote>\n He concludes by claiming term limits \u201cmerely move\u201d the problem without offering any suggestion to solve it. Thankfully, term limits don\u2019t need to solve \u201cjudicial power, constitutional disagreement and national polarization\u201d \u2014 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<\/em>. If the people vote for one general thrust of judicial philosophy for the better part of two decades, then the Court should reflect that. <\/p>\n Again, the story isn\u2019t that the critique of term limits is bad. That was inevitable. But it\u2019s significant that term limits proposals are facing complaints beyond smug dismissal and at least we\u2019ve moved beyond just acting like term limits exist outside the realm of the possible.<\/p>\n Term Limits Won\u2019t Fix the Supreme Court or the Confirmation Process<\/a> [National Law Journal]<\/p>\n The post Broadside Against Supreme Court Term Limits Misses The Mark<\/a> appeared first on Above the Law<\/a>.<\/p>\n 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.<\/p>\n Last week, Rep. Hank Johnson introduced legislation<\/a> 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 \u201cbut the Constitution says justices serve for life!\u201d 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<\/a>. While expanding and packing the Supreme Court remains mired below 50 percent approval, term limits cuts across party lines. This GOP Congress won\u2019t take action on Johnson\u2019s bill, but if this trend holds, it\u2019s only a matter of time.<\/p>\n And so comes the shift in criticism. The voices shrugging it off as unconstitutional are still out there, of course, but now we\u2019ve got a new flavor of critique. The National Law Journal<\/em> published a piece from Emory law professor Michael J. Broyde, arguing that \u201cTerm Limits Won\u2019t Fix the Supreme Court or the Confirmation Process.\u201d Right or wrong, it\u2019s a significant development to see lengthy broadsides that seem to accept the premise that term limits are possible.<\/p>\n That said, he\u2019s also wrong.<\/p>\n Professor Broyde argues that term limits can\u2019t 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\u2019s power, making this a hell of a non-sequitur for a piece on judicial reform, but set that to one side. <\/p>\n He\u2019s right that term limits won\u2019t transform the Supreme Court into an apolitical institution, but this misdiagnoses the problem. Everything else he argues flows from this misstep.<\/p>\n Any significant effort to make the Court less powerful would gut the institution\u2019s 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\u2019t the problem, it\u2019s that the Court delivers unrepresentative politics<\/em>. America litigated this 250 years ago and decided it didn\u2019t like politics without representation \u2014 and yet arguably its most powerful pillar of government runs like the House of Lords. <\/p>\n The problem<\/em> 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\u2019s 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\u2019s to make sure the politics tracks the country over time. Which is the only kind of politics anyone should tolerate from an unelected body.<\/p>\n This misdiagnoses compounds when it gets into specifics:<\/p>\n 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.<\/p>\n<\/blockquote>\n 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<\/em> not partisan. Which is to say, it\u2019s one thing to be a consistent originalist, and another to make up different rules to help your own party<\/a>. 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\u2019s already a factor in the vote, it\u2019s just that right now seats materialize on a schedule dictated by a justice\u2019s cholesterol. And if it\u2019s not a factor of health, it\u2019s a matter of justices timing their retirements to lock in partisan gains to artificially shift the Court\u2019s balance out of step with the results at the ballot box. <\/p>\n Reducing a justice\u2019s 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 \u201conly\u201d 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.<\/p>\n<\/blockquote>\n In 2016, Republicans explicitly stated that they would keep Scalia\u2019s seat vacant for four years if Hillary Clinton won<\/a>. This fact is damning for Broyde\u2019s argument, because it demonstrates the how the political issue has metastasized into a cynical drive for deadhand influence. It wasn\u2019t 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\u2019s arbiter of constitutionality can be held hostage in a scramble for today\u2019s politicians to capture extra decades of power down the road is a problem. Term limits remove this temptation. <\/p>\n 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?<\/p>\n 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.<\/p>\n<\/blockquote>\n 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\u2019t get laughed at. Term limits removes this perverse incentive and opens the process back up to more seasoned nominees who \u2014 to answer Broyde\u2019s concern \u2014 would not leave the Court until well past those last possible years of practice.<\/p>\n 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\u2019s institutional culture and the ability to shape legal strategy from the highest perch in American law.<\/p>\n<\/blockquote>\n Here\u2019s the thing: that won\u2019t happen. You know how we know this won\u2019t happen? Breyer, Kennedy, Souter, O\u2019Connor\u2026 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<\/a>, 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\u2019re not going to trade a path where they make several million a year churning out children\u2019s 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.<\/p>\n In fact, the only justices taking money from powerful litigants under the table are the longest<\/a> serving<\/a> ones<\/a>. The corruption risk the essay invents for a hypothetical future is, in the present tense, a feature of life tenure.<\/p>\n 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\u2019s appellate jurisdiction \u2014 which is defined by statute, not the Constitution \u2014 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.<\/p>\n 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.<\/p>\n<\/blockquote>\n You don\u2019t have to imagine it, that\u2019s 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 \u201caccess, insight and influence\u201d is already here. Besides, would a former justice really add much to the equation? They\u2019ve spent almost two decades convinced they\u2019re the smartest one in the room\u2026 that doesn\u2019t translate well to advocacy.<\/p>\n 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\u2019s power, resolve interpretive disagreement or make Americans less divided.<\/p>\n<\/blockquote>\n He concludes by claiming term limits \u201cmerely move\u201d the problem without offering any suggestion to solve it. Thankfully, term limits don\u2019t need to solve \u201cjudicial power, constitutional disagreement and national polarization\u201d \u2014 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<\/em>. If the people vote for one general thrust of judicial philosophy for the better part of two decades, then the Court should reflect that. <\/p>\n Again, the story isn\u2019t that the critique of term limits is bad. That was inevitable. But it\u2019s significant that term limits proposals are facing complaints beyond smug dismissal and at least we\u2019ve moved beyond just acting like term limits exist outside the realm of the possible.<\/p>\n\n
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