The Usefulness of Mandatory Retirement in Reforming the Supreme Court of the United States
As the highest judicial body in the country, the Supreme Court of the United States (SCOTUS) plays a pivotal role in interpreting the Constitution and in shaping the legal landscape. In recent years, concerns have been raised about the court’s structure, lifetime appointments, and the political polarization of its justices. While the current system has served the nation well for many years, exploring alternate ways of reforming the SCOTUS is essential to ensure its continued efficacy and legitimacy.
One proposed reform involves expanding the number of justices on the SCOTUS. Traditionally, the court has had nine members, but there is ongoing debate about whether increasing the number could help balance the perverse impact of ideological influences. Advocates argue that a larger court would dilute the effect of individual appointments, making it less susceptible to sudden shifts in ideology. However, critics worry that expanding the court may undermine its perceived impartiality and independence.
A second proposal for reforming the SCOTUS involves improving the confirmation process used to appoint judges to the court. Establishing a more bipartisan approach to nominations and confirmations could help depoliticize the court. One idea here is to require a supermajority vote in the Senate for confirmation, ensuring that nominees have broad support and thereby reducing the influence of short-term political considerations. This approach could foster greater consensus and reduce the perception of the court as a politically motivated institution.
A problem with the above two suggestions for reform is that the positive claims made by their proponents are speculative in nature with little, data-driven, hard evidence to suggest that these reforms, if implemented, will yield tangible benefits. One reform proposal that is immune to this criticism is the suggestion that the justices of the SCOTUS ought to be subject to mandatory retirement.
Recently, the economists Elliott Ash and Bentley MacLeod have used modern econometric techniques to examine the performance of judges on United States State Supreme Courts. This examination makes sense not only because State Supreme Courts are the analog of the national Supreme Court at the state level but also because unlike judges in the SCOTUS, many State Supreme Court judges are subject to mandatory retirement constraints. The analysis conducted by Professors Ash and MacLeod provides compelling empirical evidence in support of the thesis that mandatory retirement improves the performance of judges. Performance here is measured by output or the number of opinions rendered and legal influence measured by the number of positive citations to opinions.
Given that the closest analogs of SCOTUS judges at the state level benefit from mandatory retirement, might it not be a good idea to implement a similar rule at the federal level? Although the answer, in principle, is “yes,” the work of the prominent jurist Richard Posner tells us that instituting such a requirement at the federal level may be unconstitutional. Therefore, if we are to put mandatory retirement in place for judges of the SCOTUS then we need to build impetus for a constitutional amendment or, if that is not possible, then use the notion of “senior status” to diminish what Professors Ash and MacLeod call the “negative output effect of older judges on younger judges…”
