Life Tenure, Term Limits, and Supreme Court Justices

Linda Greenhouse wrote a provocative article on term limits for Supreme Court Justices yesterday for the New York Times, highlighting the arguments of several important scholars on the issue, see here. Her article has prompted lengthy posts on the issue on both the Volokh Conspiracy, see here, and Concurring Opinions, see here. Among the leaders of the movement for an end to life tenure for Supreme Court Justices are Steven Calabresi and Jim Lindgren (both of the Northwestern University School of Law) and Roger Cramton (Cornell University Law School) and Paul Carrington (Duke University Law School). The proposals range from a mandatory retirement age (David Garrow) to nonrenewable eighteen-year terms, though scholars disagree whether the latter can be achieved by statute (Carrington and Cramton) or must be done through a constitutional amendment (Calabresi and Lindgren). To be frank, the call for an end to life tenure has garnered support from academics of all political persuasions, from a co-founder of the Federalist Society to leading liberal academics.

Key to nearly every argument to end life tenure is the empirical claim that Justices are serving longer than ever before and that the nature of life tenure has accordingly changed and for the worse. Nearly every article on the subject, including those of scholars and leading Supreme Court reporters, reports that the average tenure over history is 15 years for Supreme Court Justices and an astonishing 26.1 years for the most recent period, 1971-2006. Calabresi and Lindgren emphasize this claim in both their contribution to an edited volume entitled “Reforming the Court: Term Limits for Supreme Court Justices” and in their Harvard Journal of Law and Public Policy article, see here, which is discussed at some length in the Greenhouse piece. The problem with the claim, however, is that while tenure for Supreme Court Justices is indeed increasing as an empirical matter, it is not doing so at nearly as rapid a rate as Calabresi and Lindgren claim nor has it reached unprecedented levels.

As we highlight in an article published this month in the Harvard Journal of Law and Public Policy, the Calabresi and Lindgren study, which was quoted extensively by Greenhouse, suffers from two fundamental flaws. First, it suffers from a period-selection problem. Calabresi and Lindgren selected period lengths–thirty years–and cutoffs for those periods that maximized the slope of the upward trend in the terminal period. We ran charts using periods of fifty, forty, fifteen, and ten years, and none demonstrate such a large increase in the final period as the thirty-year charts selected by Calabresi and Lindgren. Most, as our regression analysis confirms, show slow and steady growth (with a few hiccups) in average tenure on the Supreme Court. Second, the Calabresi and Lindgren study suffers from a date-of-observation problem. If there were a consistent and robust upward trend in life tenure, one would expect to see it no matter what methodology or assumptions are used. However, changing almost any of their assumptions, even slightly, demonstrates that the trend is not nearly as robust as they claim. When one charts tenure data for Supreme Court Justices by date of appointment, only a slight change in the assumptions used by Calabresi and Lindgren, the trend largely falls apart. Even with thirty-year charts based on date of appointment, tenure was clearly longer in the period from 1810 to 1840 than during the most recent period.

But there are other problems with term limit proposals that were not discussed at all in the Greenhouse article. One important feature of life tenure is that it decelerates the rate of legal change, as Ward Farnsworth (Boston University Law School) has rightly pointed out. In other words, gradual changes in the composition of the Supreme Court lead to gradual changes in the law, as most Justices do not reverse course often on issues that they have already decided. Many commentators, especially in the popular press, have been upset at the Roberts Court for paying lip service to stare decisis but then overruling precedent sub silentio. Although I am not sure that I agree, can you imagine the amount of legal turmoil that would ensue if the Senate were confirming new Justices every two years? An eight-year term for a President could fundamentally reshape the Court and lead to a flip-flopping of precedent each time a new party regains control of the Presidency. It could not only undermine the legitimacy of the Court, but it would lead to great uncertainty in the economy as businesses, for example, would not only need to prepare for a new administration and a new Congress but also a new Supreme Court.

Another problem with term limits is the concomitant decline in judicial independence. If Justices are nominated to the Court at an early age, even as late as their late 40s or early 50s, they will presumably hope to have a career after their non-renewable eighteen-year terms expire. That is most certainly true for Justices appointed in their early to mid 40s. Most political scientists already believe that the decisions of the Supreme Court are a product of nine individual policy preferences and that politics can largely explain the Court’s outcome in cases containing certain hot-button issues such as abortion or affirmative action. One can only imagine how influential the political environment will be on Justices who hope to improve their prospects for employment outside the judiciary after their terms end. As a result, term limits create a serious potential for final-period problems, where a Justice’s vote can be attributed more to the fact that their judicial career is coming to an end than to their true beliefs on an issue. Indeed, it bears reminding that life tenure is only one of two explicit protections of judicial independence in the Constitution, with the other being non-diminishment of salary while in office.

Although I will not highlight them here, there are also a number of arguments both in favor of life tenure and against term limits that are just too numerous to discuss here. For particularly well-done articles on the subject, see Ward Farnsworth, The Case for Life Tenure, in Reforming the Court: Term Limits for Supreme Court Justices, at 251 (2006); Arthur D. Hellman, Reining in the Supreme Court: Are Term Limits the Answer,? in Reforming the Court: Term Limits for Supreme Court Justices, at 291 (2006); Ward Farnsworth, The Regulation of Turnover on the Supreme Court, 2005 U. Ill. Law. Rev. 407 (2005). I have also written a bit on the subject as well in co-authored pieces (with Ryan W. Scott), see here and here. I have always thought that term limits for Justices sound good until you really give the issue some thought.