The Becker-Posner Blog

Yes to Term Limits for Supreme Court Justices-BECKER

I first expressed my support for judicial term limits in a column written for Business Week about 15 years ago, and reprinted in Becker and Becker, The Economics of Life. Over time I have become more convinced of that position, especially for Supreme Court Justices. Still, I was pleasantly surprised to discover recently that a significant number of prominent law professors, practicing lawyers, and academics from both the left and right (not only conservatives) have signed on to a proposal to eliminate lifetime tenure for Supreme Court Justices. I concentrate in these brief comments on the Supreme Court, and draw on my earlier column, and on the paper behind this proposal by two law professors, Paul Carrington of Duke University, and Roger Cramton of Cornell. Alexander Hamilton argued in the Federalist papers for lifetime tenure for judges in order to try to make their decisions independent from politics, and to encourage them to interpret the Constitution rather than to exercise �will�. But the extraordinary expansion of government during the 20th century has forced an aging Supreme Court to rule on problems of enormous significance: abortion, civil rights, taking of property, wrongful discharge, treatment of terrorists, and many other issues. What they decide makes a real difference, as seen from their rulings on abortion and many other issues. Perhaps this is inevitable, but most Justices find it impossible not to follow their �will� rather than �interpretation�. There is no perfect system for handling these responsibilities of the judiciary, and the lifetime approach worked well enough during earlier times when far fewer issues came before the court, and Justices did not stay on for so long. But the average tenure of a Supreme Court Justice has increased from about 16 years to almost 26 years, and the average age at retirement grew from about 70 years old to 80. The nine present Justices of the Supreme Court have served together for the longest time in America�s history, some 10 years, with the last appointment made in 1994. Given their desire to influence future Court decisions, presidents are appointing younger Justices who will be able to affect judicial decisions for 40 years or more. Moreover, the prestige and power of a Justice is so great, and the workload so low- a typical Justice writes about one opinion per month, and much of that is usually done by outstanding clerks- that they have little work incentive to retire before death or severe incapacity. Do we really want 80 year olds, who have been removed from active involvement in other work or activities for decades, and who receive enormous deference, in large measure because of their great power, to be greatly influencing some of the most crucial social, economic, and political issues? My answer is no, and Posner seems to agree, at least for Supreme Court Justices. Carrington and Cramton propose a single 18-year term for Supreme Court appointees as an alternative to lifetime appointments. After their term expires, Justices could serve on lower federal courts. That may be the best approach, although reasonable alternatives would be a single term of shorter length-such as the 14 year (although renewable) terms of Federal Reserve appointees- or perhaps even a ten year term that is renewal once. With any of these approaches to term limits, Senate fights over confirmation would become less fierce and partisan since an appointee would then not be ruling for perhaps 40 years on major legislation and other Acts. There would also be less incentive for Presidents to try to appoint very young Justices. Some of you might respond that I should first improve my own sector since academics like myself have lifetime tenure too. However, until the early 1990�s universities forced professors to retire, usually at age 65. I believe it was a mistake for Congress to eliminate forced retirement. Still, many universities do provide financial incentives to retire �early�, and about 1/3 of the professors at major schools are taking such early retirement. In addition, sharp competition among universities induces higher compensation for professors who are doing well, and lower pay and other benefits for those who are slacking off. There is no comparable competition for members of the only Supreme Court. Of course, it is far more difficult to change the tenure of Supreme Court Justices and other federal judges since the Constitution guarantees lifetime tenure while in �office�. But the proposal being advanced by Carrington and Cramton claims that �office� does not necessarily mean remaining as a Supreme Court Justice, and could involve serving on lower Federal courts, such as appellate courts. I do not have a strong opinion on the optimal term limit, or whether a single term or two shorter terms is better. But I do believe that term limits for Supreme Court Justices (and perhaps other federal judges too) would be superior to the present lifetime system.

Economic and Political Freedom: Does One Lead to the Other? BECKER

President Bush�s January inaugural speech stressed the importance of improving political freedoms worldwide: �So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in the world�. The right to vote freely and other political freedoms are valued everywhere, clearly demonstrated by the happy faces of many Iraqis when they went to vote for the first time in free elections. Pressure to liberalize politically may be spreading throughout the Middle East, as shown by recent small steps toward greater democracy in Egypt, Lebanon, and Saudi Arabia. Men and women �in every nation and culture� also place high value on economic freedoms. These include the ability to own property and have it protected by law and contracts, the opportunity to change jobs, including moving off farms and to different cities and regions, the right to become self-employed, and the freedom to choose among hundreds of varieties of goods and services at competing establishments. The Chinese are so happy with the economic freedoms granted them during the past 25 years that for the moment they have accepted sharp limits on their political freedoms, including a one party system, a controlled press, and attempts to limit access to many websites. Similarly, Indians were content enough with their extensive political freedoms acquired after independence from Great Britain in 1947, so they did not press for economic freedoms until four decades later. Since both economic and political freedoms are highly valued, it is essential to understand how they interact as nations evolve. The history of different countries during the past century strongly indicates that economic freedoms over time typically push societies toward political freedoms. To take a few examples, South Korea, Taiwan, and Chile all started their economic development under military regimes. Korea and Taiwan both began freeing their economies around 1960 after centralized direction of their economies failed to produce economic growth. Chile began opening its economy under General Pinochet in 1981, also after his centralized approach to the Chilean economy failed. Within two decades, all three nations had achieved, or were moving rapidly toward, political democracies, with vibrant competition for elections among competing parties, and a mainly free press. The path from political to economic freedom, by contrast, is slower and more uncertain. It took India over four decades to begin to loosen its extensive controls over private companies, labor markets, start-ups, imports from abroad, and numerous other activities. It still has a long way to go. Mexico has had a free press and considerable political freedom for a century or so, but economic freedoms did not begin to evolve until the latter part of the 1980�s. Israel has fierce competition among political parties, but continues to have an overly controlled economy. To be sure, a few case studies are not conclusive, partly because one may pick and choose to come up with favorable examples. So examples have to gain support from analyses of as many nations as possible. International comparisons of these questions were started by the sociologist, Seymour Martin Lipset, and continued by many others, especially more recently by the economist Robert Barro. The consensus among these studies is that countries are likely to become democratic if economic growth succeeds in raising their average incomes to high enough levels. And countries with greater economic freedom, that is with freer markets and more secure private property, produce faster growth and greater prosperity than countries that sharply limit economic freedoms. Moreover, this strong positive relation between economic freedom and growth is largely independent of the degree of political freedom. These studies also find that the effect of political freedom on subsequent economic growth is weak. There is probably greater variability in economic performance under dictators, but on the average, totalitarian regimes and democracies do not differ greatly in their rates of economic progress. I believe that democracies are not especially successful at generating economic prosperity because powerful interest groups develop under democracies (and other political systems too). These groups compete for economic favors that often are at the expense of economic efficiency. For example, democratic nations have difficulty shifting away from policies that say restrict foreign and domestic private investments, as India did for so long, because both government and private enterprises that benefit from these restrictions lobby to continue them. By contrast, when economic freedoms lead to greater prosperity, that encourages a widespread desire for more political freedom. With freer markets,entreprenuers and management travel abroad more often to meet customers and suppliers, and incidentally learn about the freedoms elsewhere. A growing middle class takes trips to other countries, and they send their children abroad to study at top schools. University students read the great works that show the advantages of political freedoms. More families become highly literate as education progresses, and families learn about the world from cable and satellite television, and from the internet. As a result of these activities, a steadily increasing fraction of the population become aware of the political freedoms enjoyed by the leading nations, the great satisfaction from having the right to speak openly, to read conflicting opinions on different issues, and to vote for candidates with competing agendas. They begin to agitate for greater political freedoms, and eventually they become too powerful a force to be ignored. This analysis implies, in particular, that if China continues to grow rapidly, the Chinese people will become increasingly dissatisfied with censorship and their limited political freedom. Already they have much greater freedom than under Mao to voice different opinions, and to criticize the government -if not done too stridently and openly. These forces will gather steam, and I believe they will lead before long to a much more open political process. To be absolutely clear, I am not claiming that people value economic freedoms more than political freedoms. Rather, the argument is that economic freedoms tend to lead before long to political freedoms, while the reverse causation is slower and less certain. Put differently, private property and open markets help economies grow, which gives the political process a strong shove toward democracy. For this reason, the President�s inaugural speech should have paid more attention to economic freedoms, along with his stirring and convincing case for democracy.

Democracy and Free Markets--Posner's Comment

I agree with Becker that a high standard of living is likely to lead toward democracy. The intermediate stage is political liberty. As John F. O. Bilson explains in his article �Civil Liberty�An Econometric Investigation,� 35 Kyklos 94, 103 (1982), �Almost any reasonable theory of freedom would predict a positive correlation between freedom and real income. On the demand side, freedom must be considered a lux�ury good so that the re�sources devoted to the attainment of in�di�vidual freedom are likely to be greater when per capita in�come is high. On the supply side, it is undoubt�edly more costly to repress a wealthy person than a poor person and the need to do so is probably less acute.� Although we tend to associate political liberty with rights against government coercion, for example the rights conferred by the U.S. Constitution, rather than with democracy as such, it would be difficult to be secure in those rights without electoral competition; rulers who are not required to stand for election at frequent intervals are too powerful to be constrained by courts. Becker gives good examples of how authoritarian governments evolve toward democracy as the standard of living rises. I agree that under modern economic conditions rapid economic growth requires a commitment to free markets. The puzzle is why, knowing that such growth will undermine authoritarian government, a dictator or ruling clique would want to allow economic liberty. To safeguard his power, one might think, a dictator would keep his country poor. That has been, in fact, an effective strategy for many, probably most, dictators. It may be that dictators adopt a policy of economic liberalization only when their political power is already in decline, so that the optimal strategy is to slow the rate of decline by buying off the population (temporarily) with greater economic opportunities, siphoning the people�s energy from political to economic activity. I also agree with Becker that there is no necessary tendency for democracy to promote economic liberty. This is implicit in the fact that every modern democracy grants rights against the democratic majority, notably property rights, as in the requirement in the Fifth Amendment that the government pay just compensation for property that it takes for a public use. This is recognition that democracy can endanger economic liberty. When we speak of the desirability of �democratic� government, what we should mean by democracy is not popular rule in some literal sense (the sense the word �democracy� bore in ancient Greece), but a system in which the principal officials are subject to electoral checks and in which the entire government has only limited powers over the citizenry. In a wealthy society, the democratic structure as I have sketched it will usually suffice to preserve considerable economic freedom; but in a poor society, the preconditions for such a structure may not exist and as a result democracy may undermine economic liberty seriously. There may be elections, even honest elections, but there may not be judges competent and independent enough to protect property rights securely and enforce contracts reliably. A democratic government may be populist in the sense of adopting policies that produce equality at the expense of growth (�killing the goose that lays the golden egg�). That is why there is no necessary correlation between democracy and prosperity. But I think President Bush had something else in mind when he called for greater democracy in the Middle East and other areas of the world where authoritarian government predominates. I don't think his principal objective was to promote economic liberty in those countries. I think the point rather is that democratic societies tend to be less aggressive militarily than authoritarian societies. The reason is that most people in any society have no taste for the risks and violence of war. Democracies may find themselves involved in defensive wars, of course, but there are very few examples of democratic societies warring with each other; that is, democracies are rarely aggressors (rarely, not never). It is therefore in the U.S. national interest to promote democracy throughout the world, because if all nations were democratic the military threat to the United States would be greatly reduced. It is true that democracy in the Middle East might bring to power in some nations radical Islamist movements. Nevertheless if they were genuinely democrat they would probably find it difficult to rally their people to support a militaristic foreign policy, or to support terrorist movements that might provoke a violent response from the United States.

University Governance--Posner's Reply to Comments

I did not mean to suggest that a university should be organized in the same way as a conventional business firm. For that matter, there is no single way in which business firms are or should be organized; optimal organization varies with the nature of the business. In a software company, or any other company whose success depends on the imagination and originality of its "knowledge workers," hierarchical control will be loose and employees will have more scope and say. And so in a research university like Harvard we expect the faculty, the principal employees--and knowlege workers all, to have a large say in governance. But their say may well be too large. (Teachers are much more influential in public schools than in private schools--is that a good thing?) One reason U.S. universities are better than European universities is that the latter are even closer to the workers' cooperative model of organization than our universities are--often the president of a European university will be elected by faculty, students, and staff. Students are birds of passage and immature; most staff knows little about the institution; and university faculties--to be blunt--contain not only a fair proportion of social misfits (for academia places little value on interpersonal skills), but have become so specialized that most academics know and care only about their own, often very narrow, field of research. Larry Summers can be seen as attempting an incremental shift in university structure toward the business model. Compare a university department with the corresponding division of a business firm. The department is likely to operate as a self-perpetuating oligarchy, with the chairman appointed by and dependent on the faculty of the department and owing all fealty to the department rather than to the university. Rarely will a department chairman aspire to a leadership role in university administration, and so he will have no incentive to bring a university-wide perspective to his job. In contrast, the corporate division head will be looking to rise in the corporate hierarchy, and this will require him to manage his division with due regard for the division's role in the corporation as a whole. There is room for experimentation with tightening university control over departments, as by empowering the university's president to appoint and remove department chairmen, and empowering department chairmen to make occasional faculty appointments without a departmental consensus. The result might be more responsible, coherent management. It is plain that with all their strengths, American universities have plenty of problems. Neglect of teaching by academic stars is one. The reign of political correctness, which makes a mockery of the academic commitment to wide-open debate, is another; a related point is the political imbalance of university faculties. The continued advance of specialization, which threatens to destroy any general intellectual culture and further estrange the universities from the society as a whole, is a third problem. Universities need better management to solve these problems, and better management may require changes in organizational structure.

Response on University Governance-BECKER

My comment was criticized as being too complacent about an American system of higher education that is better than others, but is clearly far from perfect. I agree it can be improved-I caution in my entry not to be complaisant- but I am dubious of most proposals to change procedures that have stood the test of experimentation and alteration. And many experiments have passed into the dustbin of history. For example, after the student riots of the late 1960�s, some American universities gave students a much larger role in choosing faculty and even presidents. These have largely been discarded because they did not work well, and students were not even interested in such �power�. One criticism made is that I am inconsistent because I was willing to offer a radical new proposal for the immigration system even though America has benefited greatly from immigration. But the present immigration system has obvious defects, measured say by the large number of illegal entrants, the long waiting times to get green cards, and the arbitrariness of admission criteria. And there is no competition within the US for the admission of immigrants. The weaknesses of the American university system are less striking, the desired changes are less clear, and the competition is fierce. Still, I do criticize universities all the time-including my own!- but I am also aware that the American system of higher education offers a remarkably diverse portfolio of choices, and it has performed extremely well. So many of my criticisms and those by others are what game theorists call �cheap talk�. I mainly wanted to caution against accepting proposed changes in university governance too easily. To be concrete, I am skeptical of giving trustees more power, or giving faculties much less. In between these positions, I readily admit there is considerable room for change. For example, I believe it is often desirable for a president and provost to take over weak departments and put in their own chairmen. Unfortunately, this is done less often than appears necessary even at the strongest universities, although I may be wrong and the reluctant administrators right. It was pointed out correctly that the reputation of universities, good or bad, often greatly lag reality. Clearly, applicants often do not know the current situation, and universities sometimes live off of their past reputations. This lag shows up in the unusual stability over time of the ranking of different universities compared to the rankings of companies in say the steel or grocery industries. So competition among universities may not work so quickly as in profit-making industries to weed out those performing poorly, and replace them by dynamic new universities. But still, Stanford, Chicago, Berkeley, and UCLA all rose to prominence during the 20th century, while prominent universities of a century ago, like Clark and Johns Hopkins, declined. Moreover, as one of the comments indicated, innovators like the University of Phoenix and completely online colleges have emerged in very recent years, and are enrolling hundreds of thousands of students. Some of comments drifted into an interesting discussion of the protections afforded free speech at universities. This is a relevant aspect of university governance. I will just indicate my belief that universities have to defend strongly the right to speak on campuses, including the right to speak by those on the far right as well as those on the far left. That said, I cannot understand why any university group would invite someone like Ward Churchill to speak, or believe he has anything to say that is worth hearing.