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.