In Bloomberg, Stephen Carter puts forth a simple proposal to reduce the cultural wars over open seats on SCOTUS:
Suddenly everybody wants to explore term limits for Supreme Court justices. Welcome aboard. I’ve been on that train for almost a quarter of a century. The current argument is that life tenure is a leading cause of the increasing viciousness of our confirmation battles. But whether term limits would fix the process depends on whether we’re right about what’s wrong.
Term limits are popular. Some 61 percent of Americans support them. Whether categorized by party, income, race, gender or religion, in no demographic group does a majority oppose them. 1 Over the last decade or so, many legal scholars have embraced the idea of discarding life tenure in favor of either a mandatory retirement age or, more often, a specified number of years on the high bench – usually 18 or 15.
But the biggest problem with life tenure, especially in our polarized age, is that it makes a seat on the bench far too valuable. Political parties, whether in or out of power, invest considerable capital in securing seats for their own side, or denying them to the other, because the seats themselves are so scarce a resource.
What drives all this is that vacancies occur so rarely. Their scarcity drives up the political price each side is willing to pay in order to get one. We can’t reduce the demand, but we can increase the supply. If vacancies were more common, the value of the seats would fall, and there would be less incentive to contest each one so vehemently.
Carter may have been talking this up for a quarter century, but this article is shockingly deficient in that it doesn’t talk about how it could preserve that which we must value the most about the judiciary: independence and integrity. As long time readers know, I worry enough about the bending of justice to the winds of public whim and human self-interest that I reject the entire notion of judicial elections. The summary is that judges who must depend on the whim of the electorate for election may be strongly tempted to change their legal interpretations to suit those whims, and this may lead to unjustified ruptures in the law.
That leads to the most important question: how would term limits affect judicial independence and integrity. I think this is a bit of a tangled question. My first inclination was that this might be a good idea if term limits are strong term limits, which is to say, once a term limit is reached, there is no possibility of being appointed to a second term. One and you’re done, so to speak.
But then I thought about it some more. In my discussion of how the Kavanaugh confirmation may redound onto the Republicans’ neck, I noted that this lifetime appointment means that Kavanaugh is now off the Republican leash. That is, licit Republican influence on Kavanaugh is now nothing more than persuasion. They cannot promise him further positions, or deprivation from same. The best they can hope for is to discreetly promise or threaten family and friends, but that is a somewhat more dubious business, and can be subject to FBI inquiries.
Image source: NGV
He has, in essence, the Golden Fleece.
The term limit requirement, however, would invalidate that assumption to some extent. We do have to keep in mind that there’s little enough to keep a Justice from helping move to the court to a position desired by some party, and then resigning from the Court and reaping whatever reward has been promised them; a term limit, however, will force all Justices from their positions, and thus perhaps multiply opportunities for corruption. But, in all honesty, a corrupt justice will find a way to benefit from their position, and while this may not obviate objections to term limits, it does blunt the objections. Let’s note this argument may merit more discussion at some other time and move on.
Carter notes his proposal would address a number of issues, such as the effect of aging on the intellect, “strategic retirement” (think Anthony Kennedy’s retirement), and that sort of thing, but I’ll confine myself to consideration of his primary point: that term limits will calm the political wars over seats on SCOTUS. I think there’s a number of problems with this position. First, I will repeat his contention and his summary reasoning:
What drives all this is that vacancies occur so rarely. Their scarcity drives up the political price each side is willing to pay in order to get one. We can’t reduce the demand, but we can increase the supply. If vacancies were more common, the value of the seats would fall, and there would be less incentive to contest each one so vehemently.
I am most bothered by the application of reasoning derived from economics, because it makes the intellectual error of borrowing analysis of causal activity from one domain for application in another without at least attempting to ensure the rules concerning isomorphisms are followed; if you think about how analogies can fail, you’ll understand my concern about isomorphisms. Granted, Carter’s is a pop article and not a deep analysis, but I am distinctly uncomfortable trying to accept his suggestion that SCOTUS seats are simply just another commodity that are for sale, and that by making more available, the price will drop, for it seems both intellectually lazy and, on the face of it, wrong.
First of all, commodity sales are most often independent events from most perspectives, with the exception that they do all occur. This is not true of SCOTUS seats. The value of any given SCOTUS seat, if we wish to use the perspective of partisan politics rather than that of judges deciding points of law with respect to the activities of jurisdictional entities (this would be my Second point, BTW, which needs little more elaboration – I hope!), will be an equation heavily dependent on the current composition of the Court, and, to a lesser degree, on the pattern of predicted retirements from the Court, forced and unforced, and how they interact with the currently perceived ideological leanings of those seated Justices.
Third, equating a commodity consumer with the partisans who brought about the recent battle over Kennedy’s former seat seems naive. The Court has been successfully politicized, it appears to me, and while we can argue over which Party is responsible[1], it’s a fact that happens to be at odds with the ideal American governmental system. Each successive war for a SCOTUS seat will inflame partisans, the tribal members whose first and final priority, with little thought for anything else, is the victory of their little tribe. By increasing the frequency of open seats, we may cause the heat of our infection of partisanship to simply grow higher and higher.
This may lead to an unintended positive consequence, and that lies with younger, as yet uninvolved generations of Americans. Substantial portions of them are watching these conflicts, and with some fair dismay, if the occasional demographic survey of political opinion is anything to trust. We may find that both parties continue to shrink in size as they display their worst aspects to prospective members during these more frequent fights over SCOTUS seats.
So, cutting this off here, I think to suggest that a greater supply will ensure less partisanship seems unlikely. I think it’ll increase it. I haven’t addressed questions about losing cumulative experience and that sort of thing, as I’m not sure how much importance there is for experience among Justices, and how much they can refer to former Justices when it comes to that.
But I think a question of term limits for Justices needs a lot more exploration in the context of current political realities.
1 My familiarity with the history of SCOTUS appointments doesn’t go back much further than the rejected nomination of Judge Bork. My understanding is that he was rejected for his radical view of the judicial system, but I do have to wonder if there was an undercurrent of unease because Bork had been Nixon’s hatchet-man for the Saturday Night Massacre. The short recap is that President Nixon, then under special prosecutor investigation by Archibald Cox for conspiracy in connection with the Watergate incident, decided he wanted Cox out, and so ordered the Attorney General to do so. AG Richardson refused and resigned, and then so did Deputy AG Ruckelshaus. However, Solicitor General Robert Bork complied and fired Cox, which suggests to me a lack of honor on his part.
