Instead of Term Limits for Justices, How About Term Delays?

Justices should ascend to the bench when the president who appointed them leaves office

Daniel Hemel
Oct 5, 2018 · 5 min read

The idea of term limits for Supreme Court justices is attracting ever more attention, sparked in part by the bitter fight over Judge Brett Kavanaugh’s confirmation. The most common version of the idea is to limit justices to 18-year terms, with one member of the court being replaced every two years. It’s not a new idea, and I think it’s a step in the wrong direction. Rather than cutting short the terms of Supreme Court justices, we should delay their start.

Congress could reduce the politicization of Supreme Court confirmation battles and bolster the court’s independence by inserting a time lag between the date of confirmation and the date that a justice takes the bench. The best way to do this would be to specify that a Supreme Court justice’s term will not begin until the president who appointed her leaves office. This would mean that President Obama’s appointees, Sonia Sotomayor and Elena Kagan, would have joined the Court on January 20, 2017, the day that Obama left the White House. If Donald Trump is a one-term president, his appointees (i.e., Neil Gorsuch and — pending a final confirmation vote — Brett Kavanaugh) would become justices on January 20, 2021.

Term limits aren’t the answer

To understand why term delays for Supreme Court justices would be warranted, it’s helpful to first examine the flaws with the term limit proposal. Staggered 18-year terms would mean that a two-term president could appoint four justices who serve while he still occupies the White House. That’s a problem for three reasons.

First, we generally think that no one should be the judge in his own case — and no one should choose the judge in his own case either. The sitting president and his administration litigate before the Supreme Court more frequently than any other party, which means that the Court’s most frequent litigant would be choosing nearly half of the justices.

That sounds bad in the abstract, and it’s even worse in practice. As my colleagues Lee Epstein and Eric Posner have demonstrated empirically, Supreme Court voting patterns show a presidential loyalty effect. That is, a justice is more likely to vote in favor of the administration of president who appointed her than to vote in favor of another president from the same party. To take one example, Justice Stephen Breyer, a Clinton appointee, voted with the Clinton administration more than two-thirds of the time but voted with the Obama administration less than half the time. Similarly, Justice David Souter, named to the Court by the first President Bush, voted with the administration of his appointing president 68% of the time but voted with the next Republican president (the second Bush) only 50% of the time.

If we want the Supreme Court to serve as an independent check on the other branches of government, then the loyalty effect is problematic. And 18-year term limits would make it more so, because there would be even more instances in which a sitting justice feels loyalty or gratitude toward the current Oval Office occupant.

Not only might it distort a justice’s decisions when she hears cases involving her appointing president, but it can distort the president’s selection of justices as well. Judge Kavanaugh’s nomination led some to suspect that President Trump may have chosen the D.C. Circuit judge because of Kavanaugh’s expansive view of presidential power. True or not, such speculation is inevitable when a president appoints justices who will serve during his time in the White House. Staggered 18-year terms will make it easier — and more tempting — for a president to pack the Court with picks who will advance his short-term political agenda.

Another problem with term limits arises when a justice’s 18-year mark draws near. What will they do next? The prospect of a post-Supreme Court career — either in partisan politics or the private sector — may loom over a justice’s decisions. Imagine Ruth Bader Ginsburg running for U.S. senator from New York after her term, or John Roberts becoming Boeing’s general counsel. Would the views of potential future employers (be they voters or firms) affect the justices’ votes in controversial cases? After all, justices are humans too — subject to all the conscious and unconscious biases that other human decisonmakers are.

Patience is a virtue

Term delays would solve some of the problems that term limits exacerbate. We would never need to worry about a justice bowing to the president who appointed her, because the justice would not take the bench until that president left office. And we would never need to worry about a president appointing a justice in order to advance his administration’s immediate agenda, because the appointee would not become a justice until that president’s administration is over.

With justices still serving for life, moreover, we would not have to worry as much about the biases generated by career second acts. Of course, even now, justices can leave the court to take on political or private-sector positions, and there are a few historical instances in which this has happened. For example, Justice Arthur Goldberg left the court to become U.S. ambassador to the United Nations, and Justice Charles Whittaker went to work for General Motors after he retired from the bench. But these cases will become more frequent if life tenure is abolished.

Term delays have the additional advantage that they probably don’t require a constitutional amendment. The Constitution says that justices continue to “hold their offices during good behaviour,” but it says nothing about when that office-holding starts. Congress could likely implement the term-delay proposal now without going through a cumbersome amendment process.

There are, concededly, still further details that need to be worked out. For example, what happens if the court’s membership dwindles toward the end of a two-term presidency, with several justices retiring and their replacements still waiting in the wings? One response is that we can live with a smaller court. (In fact, we started out in 1789 with six justices, and it wasn’t until 1869 that Congress settled on the court’s current size.) And Congress could provide that if the court’s membership declines below, say, five, then federal circuit court judges will be chosen at random to serve as temporary fill-ins.

Another question is what to do if a president does not serve out his full term. For example, if this proposal had been in place in the 1970s, would President Nixon’s appointees ascend to the bench upon his resignation? The best approach is probably to wait until the current four-year presidential term ends, even if the appointing president has died or left office. Otherwise, a president might have a strategic incentive to step aside before a very high-stakes case so that he can swing the composition of the court and potentially sway the outcome.

All of this probably seems like pie in the sky. And it is — for now. But dissatisfaction over the Kavanaugh confirmation has prompted even sitting senators to discuss possible changes to the duration of justices’ terms, and it’s not impossible that reform proposals could gather steam in the coming months and years. Hopefully, lawmakers will come to see that the solution lies not in a legislated end to the justices’ terms but instead in a delayed beginning.

Whatever Source Derived

Thoughts on tax and the law

Daniel Hemel

Written by

Assistant Professor; UChicago Law; teaching tax, administrative law, and torts

Whatever Source Derived

Thoughts on tax and the law

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