LOGO: Truthdig: Drilling Beneath the Headlines. A Progressive Journal of News and Opinion. Editor, Robert Scheer. Publisher, Zuade Kaufman. Winner 2013 Webby Awards for Best Political Website
May 23, 2013

 Choose a size
Text Size

Trending:     chris hedges     economy     elizabeth warren     politics     robert scheer
Most Read

A Call to Action

Bizarre, Apparently Jihadist Slaying in London (Video)

Oklahoma Needs Help, Not Ideology

Hell on Earth for Greeks

Another Memorial Day in This Endless War

Most Comments
Most Emailed

Reports
 * NEW! * Fish Migration Reveals Ocean Warming

Ear to the Ground

A/V Booth

Arts & Culture
 * NEW! * A Call to Action
Act of Congress
Daily Rituals

Digs

Truthdig Bazaar more items

 
Reports

It’s Time for Term Limits for U.S. Justices

Email this item Email    Print this item Print    Share this item... Share

Posted on Apr 22, 2010

By Ruth Marcus

Not that it’s going to happen, but the retirement of Justice John Paul Stevens and the focus on the age of President Barack Obama’s pick to replace him have gotten me thinking about term limits for Supreme Court justices.

I’m for them.

Let me hasten to say: This is no reflection on the retiring justice. Some have overstayed their time on the court, lingering past the point of productivity; Stevens is the counterexample. I can only hope to be nearly as sharp and energetic at 70 as he is at 90. I know my tennis game won’t be nearly as good.

Rather, I’m prompted by the discussion of the need for Obama to select a justice young enough that he or she will be able to serve for decades. One of the rumored contenders, federal appeals court Judge Merrick Garland, is 57. Another, Diane Wood, turns 60 on July 4. Does their age make them past the optimal appoint-by date? Does it give a leg up to Solicitor General Elena Kagan, about to turn 50? Any of the three would be a terrific justice, but it’s ridiculous that the current system creates a perverse incentive to overvalue younger candidates.

As a general matter, lifetime tenure for judges is not only a good idea, it’s essential to an independent judiciary. As a general matter, term limits for public officials are a bad idea; they deprive the public of wisdom born of experience. But for the Supreme Court, term limits could be a big improvement. Life tenure is a relic of a time when life was a lot shorter. 

Advertisement

First, for the reasons already described, well-qualified candidates are disadvantaged at the height of their careers. Second, the combination of lifetime tenure and growing life expectancy leads to a geriatric court, at times problematically so. According to figures compiled by Northwestern University law professors Steven Calabresi and James Lindgren, the average age of Supreme Court nominees has remained steady at about 53 over time while their average tenure has grown by more than a decade in recent history. From 1789 until 1970, judges served an average of 15 years. From 1970 until early 2005, the average tenure expanded to almost 26 years. The four justices leaving since then (including Stevens) had served an average of 28 years. 

Third, and related, the increasing tenure means a court that can go long periods with almost no turnover. Until the departure of Chief Justice William Rehnquist in 2005, the court went through an 11-year stretch without any change in its membership. This is unhealthy for any democratic institution. Fourth, the absence of term limits creates a kind of presidential lottery in which some presidents (Jimmy Carter) get to pick no Supreme Court justices while others have multiple appointments (Richard Nixon had four). Fifth, fixed limits prevent justices from gaming their departures to give the pick to a president of their political persuasion.

Citing foreign law is a controversial practice these days, but no other major country gives life tenure to its equivalent of Supreme Court justices. Neither do any of the 50 states. A term limit of 18 years, phased in over time, would mean that Supreme Court vacancies would open up once every two years.

Most discussions of Supreme Court limits have assumed that a constitutional amendment would be required to accomplish this change. But an ideologically diverse group of law professors last year proposed a legislative solution that’s worth more discussion than it has generated.

The first time I heard the notion of term limits for Supreme Court justices, I thought it sounded vaguely un-American. The more I think about it, the more I am convinced it would make America better.
   
Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.
   
© 2010, Washington Post Writers Group


New and Improved Comments

If you have trouble leaving a comment, review this help page. Still having problems? Let us know. If you find yourself moderated, take a moment to review our comment policy.

RAE's avatar

By RAE, April 26, 2010 at 6:59 pm Link to this comment

Thanks, Blueboy1938, for the explanation and clarification. There’s a lot I don’t know about a lot of things. It’s refreshing to listen to someone who obviously knows a lot more about the American system than I do.

From my position as an alien onlooker though I can only conclude that, whatever the reasons and rationales for how things are, the inefficiencies are staggering. The cost in money, time and talent to get anything “done” is way past my tolerance for frustration point. I wouldn’t have the patience, no matter what I was paid, to go through what seems like an endless struggle to get an appropriation for paper clips - an exaggeration, I know, but not by much.

There’s something to be said for a benign dictatorship. It wouldn’t be perfect either but it would cost a hell of lot less! But then, when you live in a country that, when it needs money it just prints it, I guess cost doesn’t matter all that much.

Report this
Blueboy1938's avatar

By Blueboy1938, April 26, 2010 at 6:32 pm Link to this comment

The Founding Fathers were concerned about mob rule.  That’s why the
Electoral College was established to elect the President and Vice President.  The
Senate, with its six year staggered terms was another bulwark against “the
People” as represented by the House of Representatives, with its two year
concurrent terms.  The life terms for justices was a natural progression from
these types of conservative measures.

The Founding Fathers did commit some errors, when their actions are viewed
from today’s historical perspective:  Allowing for slavery to continue for at least
20 years and prohibiting support for runaway slaves, for instance.  However,
tampering with the basic structural elements they set up can have unintended
consequences.  Changes made because a segment, however large, of the
electorate is unhappy with the way the current court is deciding things will not
necessarily obtain a more pleasing result.

Besides, it isn’t really likely that a constitutional amendment to establish term
limits for justices would garner the needed three fourths of the states for
ratification.  President Obama, for instance, only carried 28 states in 2008,
which could arguably be the most liberal election in recent history.  It is
extremely unlikely that any of the 22 states that he didn’t carry would support
the ratification of such an amendment.  After all, most of the people in those states are probably pretty happy with the relatively conservative decisions being handed out by the Robert’s court.

So, whether it is a good idea or not, it is not likely to happen any time soon. 
The Congress will not muster the two thirds vote in both houses to put it on
state ballots for ratification, nor will two thirds of the state legislatures do so,
either.  How do I know?  Well, I don’t, really.  I’m just making an “educated
guess” based on the extremely divided U. S. electorate.  Getting barely more
than 50% of it to vote for the same result is monumentally difficult, let alone
two thirds.  So the process won’t even get started, and if it does, the three
fourths state ratification requirement will certainly kill it if it got that far.

Report this
RAE's avatar

By RAE, April 26, 2010 at 3:35 pm Link to this comment

Blueboy1938: “Term limits are the imposition of the judgement that the voters can’t make effective decisions.  If that is the case, then term limits won’t correct that problem.”

Surprise! I almost agree on both counts.

Voters can’t ALWAYS make effective decisions (if only because “voters” NEVER have all the info they need TO make effective decisions). Voters are “the mob.” And if the mob COULD be counted on to make effective decisions the USA would have a DEMOCRACY (mob rule).

Time limits would ENSURE that when and if the “voters” make a “mistake,” the problem is automatically resolved periodically.

In my view, the average voter is close to indifferent about politics. When I review my younger days NONE of my bunch gave one whit about poltics - there were far more urgent things to look after. Oh sure, we voted. Usually the way our parents voted if, for no other reason, than to keep the peace.

I think you imply the “voter” has a wisdom “it” doesn’t possess. You do the same with the Founding Fathers. Clearly, as religions demonstrate with fervent determination daily, almost anyone or any organization either can be cannonized or demonized according to the wishes of those set in authority over such things. These venerable gentlemen circa 1776 were every bit as capable of making blunder calls as those in power today.

Just because they were first doesn’t make them right. For example, if they truly were interested in “having a stable and insulated court” they would have let your “voters” elect them and not leave it to the “deciders” to appoint them as it suited their often hidden agendas.

Finally “If it ain’t broke, don’t fix it.”

Weak ending. How have you missed the obvious: IT’S BROKE.

Report this
Blueboy1938's avatar

By Blueboy1938, April 26, 2010 at 3:09 pm Link to this comment

There are already term limits for elected officials:  they can be voted out of office.  That’s what the U. S. Constitution provides for, and that’s what should
be left standing.  Term limits are the imposition of the judgement that the
voters can’t make effective decisions.  If that is the case, then term limits won’t
correct that problem.

In the case of the Supreme Court, to say that setting a life term was done with
the conscious determination that justices wouldn’t live all that long, being
appointed when they are at fairly advanced ages and 18th century life
expectancy so short is nonsense.  The Founding Fathers were, on average, fairly
conservative, and having a stable and insulated court naturally appealed to
them.  They weren’t concerned if a justice were to “live long and prosper” so to
speak.  They had the novel concept that with age comes wisdom.  While that
might be debatable, the “modern” trend to scuttle their work under the pretext
of actually better applying their intent is second-guessing of the worst sort.

As I said in an earlier post:  If people are unhappy with the way an institution is
currently run, they want to change it.  It’s change for change’s sake, with no
assurance that the change won’t produce a worse result.  If it ain’t broke, don’t
fix it.

Report this

By samosamo, April 26, 2010 at 11:25 am Link to this comment

*****************************


By RAE, April 26 at 10:18 am

Sounds like the military, when the military was a proud part of
this country. When a need arose for people to join, people left
their jobs, enlisted and served. When the need was gone, they
were able to return to the job or a job and make a living.

But now it is purely a ‘quick track to becoming an elite’ that is
why people want to be elected to the public coffers. And if
someone can convince his constituency to keep him in office
then even if he had Alzheimer’s disease he could still keep his
office.

Report this

By Maani, April 26, 2010 at 6:31 am Link to this comment

RAE:

Actually, you make a good point, and I agree with it - but I would still leave open unlimited terms.

You are absolutely correct that public service should not be used to enrich oneself.  A true public servant would, indeed, do it for honor and a chance to give back (or make better), and not line their pockets with lobbyist cash and other “extras.”  If one cannot survive on the base salary for the job, one should not take it.

In that regard, I would agree that those seeking public office should have to pledge - formally and legally - to, as you so wonderfully put it, have the same “financial picture” at the end of each term as they had at the beginning.  The only exception might be for, say, income earned from writing a book.  (However, I would not except speaking fees: these should not be earned during one’s tenure, but after.)

As an aside, one positive sidebar of this would be that it would effectively make most campaign finance laws moot, since “true” public servants would not accept “access” money in the first place.  (And it would essentially “nullify” the decision in Citizens United, since “true” public servants would not accept corporate access money.)

However, since campaigns DO cost money, there would have to be a set of equalizing ground rules in place such that all candidates (incumbent and challengers) start from a level playing field.

If all this were done, then potential unlimited terms would be more supportable.

Although this all sounds like a political utopia (LOL), I believe you are on to something, and I would support any petition or Amendment you might propose.

Peace.

Report this
RAE's avatar

By RAE, April 26, 2010 at 6:18 am Link to this comment

Maani asks: “If a House rep or Senator is doing a good job, why should they not be voted back into office?”

My view is that public office should be considered and honored as a contribution to the common good. It should be elected, of course, but on a volunteer “plus” basis. The “plus” is that at the end of the term the incumbent’s financial “picture” should be essentially the same as when he/she took office.

In other words, to serve in Congress or other elected public office generally should NOT be considered a career for profit for the encumbent. It should be considered taking a hiatus from your career to perform an honored service to your country in the same way as a term in the Peace Corps is. You do it for the honor and the chance to “give back.” Those who do it for personal profit are NOT working for the country… they’re working for themselves. You can’t serve two masters well.

And Maani… if the encumbent does a good job there’s absolutely nothing stopping him/her from sitting on a board of advisors for the new encumbent if he/she so wishes.

That’s my pie in the sky for today.

Report this

By Maani, April 25, 2010 at 8:22 pm Link to this comment

I agree with term limits on SCOTUS.  For over two decades, I have been proposing this as follows.

It is understood that in order for justices to be effective and not simply the political appointments of a sitting president, they need to have longish terms that straddle at least two administrations.

In this regard, term limits for SCOTUS should be a minimum of 16 years and a maximum of 20 years.  This way, they would straddle at least two (and possibly three) administrations, and would have plenty of time to settle in, and make their mark.

This is practically a no-brainer, and yet there has been no movement on it at all.

Re term limits for Congress, I am not in agreement with that.  Yes, there is some entrenchment, including some “bad apples.”  But there are also long-time members who have not only served their own constituencies well, but have served the country well.  If a House rep or Senator is doing a good job, why should they not be voted back into office?  Because there are “bad apples?”  That seems a bit overreactive.

Peace.

Report this

By John Kace, April 25, 2010 at 12:00 am Link to this comment

I couldnt make it over half-way through this article. Barely made it through the first paragraph. Didnt realy want to read it. Nevertheless the answer may be to simply choose a shadow court much like a jury. We could do the same with the house and the senate. No lawyer manipulation just random citizens. That would be a hoot I’d like that. What you do to your neighbor What comes around goes Do unto others as   OR BOMB BOMB BOMB BOMB BOMB IRAN Just say no to politicians. We dont realy need them. Vote anything except republican or democrat.

Report this

By mike112769, April 24, 2010 at 5:08 pm Link to this comment

Term limits for Supreme Court? Writer on the Storm has the best idea so far.
  Term limits for Congress and Senate would be a thousand times more helpful.

Report this

By Marc Schlee, April 24, 2010 at 1:51 am Link to this comment
(Unregistered commenter)

A Vote of Confidence Amendment will give American voters the power to dismiss any federal officeholder at any time.

VOCA, Now !!

FREE AMERICA

REVOLUTIONARY (DIRECT) DEMOCRACY

Report this

By ziggiezoe, April 23, 2010 at 11:21 am Link to this comment
(Unregistered commenter)

questions

1.  is/are there any web sites that will tell me what states are trying to pass silly and foolish laws?
example utah just passed a foolish law
example ill is trying to pass a silly law

2. is/are there any web sites that have clear charts listing the income all law makers get in each state
example california law makers get $  174,000.oo per year plus perks

3.i do now want to read a ton of information..i just want clear , to the point facts

thanks

Report this
Blueboy1938's avatar

By Blueboy1938, April 23, 2010 at 10:35 am Link to this comment

Whenever folks get dismayed by an institution, they want to change it. 
Republicans pushed presidential term limits through when they became upset
that Roosevelt kept winning.  Then, when Reagan was in, our oldest president by
the way, they wanted to do away with presidential term limits, convinced that he
could keep winning and winning.  Talk about being hoist on ones own petard!

Now that there’s discontent in some quarters that fate and the timing of Supreme
Court appointments has swung the court from Warren liberal to Roberts
reactionary, there’s movement to impose term limits on justices.  Fine.  Then,
down the road, when the court moves back to a liberal complexion - unlikely but
possible and hoped for by this movement - there’ll be another groundswell to
return to life tenure to keep it that way.

Report this

By WriterOnTheStorm, April 23, 2010 at 9:41 am Link to this comment

Term limits would bring the obvious consequence of litigants waiting out judges
known to oppose their positions. The question of when to bring your case would
become paramount, and would have the effect of increasing the political
polarization of the court, not reducing it.

The better solution is to publicly pressure judges to step down in due course
(Scalia, do your country a favor). Another solution: guarantee ten years to each
appointed judge, then some mechanism of chance (a roll of the dice, say) will
determine if they serve another five years, or are forced to step down. This would
prevent litigants from second guessing the future make-up of the court, and
stalling/blocking (or rushing) important cases.

Report this

By balkas, April 23, 2010 at 7:23 am Link to this comment

This is just another snake oil. It wld be much better if judges wld be elected, but only after a timocratic governance wld be set up.

Patching the old garment, won’t do. Modifying, ‘emending’, changing the house of horrors and terrors that US is, wld amount to worsening situation for 90%+ of americans.
And after the worsening, msm collumnists wld still call for pathches at the places of their choosing.

If i am proven wrong, by all means recall me and what i say and rub it in. Why, u cld even jail me for malfeasnce! tnx kids

Report this

By anonymous, April 23, 2010 at 6:07 am Link to this comment
(Unregistered commenter)

Justices are supposed to die sooner.  Another f*** up by our floundering
fathers.

How about changing the age requirement to, “ten years more than life
expectancy”?

Or, only those with terminal illness need apply?

Report this
RAE's avatar

By RAE, April 23, 2010 at 4:09 am Link to this comment

While you’re at it, how about 8 year term limits on all other elected representatives? Half the terms should expire every four years.

We don’t need “professionals” in those positions - we need intelligent people with vision who are there to DO THE JOB, not BUILD A CAREER FOR THEMSELVES.

Report this

By pacrat, April 23, 2010 at 2:11 am Link to this comment
(Unregistered commenter)

Supreme Court justices live more isolated lives than members of the other branches of our government. In addition, over time they lose contact with the world beyond the Beltway - more so than members of both legislative houses and the white house. Even though they have large and competent staffs they are still sequestered from the real world. The point I am trying to make is that the “lifetime” appointments are nonsensical and counterproductive to dealing with the issues and problems of a rapid changing world. Some of the justices predate TV and certainly the internet!

Yes, it is time to limit the appointements of supreme court justices - twelve years should be maximum - in addition, there should be some evaluation of their effectiveness and competency.

Report this

By CaptRon, April 22, 2010 at 10:19 pm Link to this comment

I’m sorry but I’m not in favor of term limits. First reason being that it doesn’t take long for new justices to bring in interpretations that favor outside control of our government evidenced by Roberts. Second, I expect that this would come up now that Obama will have many of the next appointments, and if young enough will be there for some time. The older justices were bigger than politics mostly, but Roberts went right to the top of influence. I cringe knowing what he has done and what and how long he still can do it. If a majority wants to do this anyway, I say 2016 or 2020 would be good years to plan a start.

Report this

By terry143, April 22, 2010 at 9:54 pm Link to this comment
(Unregistered commenter)

I think that the issue is that the supreme court
doesn’t hear enough cases during a year. It is the size
of the court that is the problem, there should be more
justices hearing more cases. Surely, today’s society is
much more complex than the one when this institution
was created, plus a hell of a lot more litigation.

Report this

By guntotinsquaw, April 22, 2010 at 9:03 pm Link to this comment

Here’s why Article 3 Section 1:The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office

This is to keep the imbalance of political power off the court. Imagine if Bush had been able to appoint a majority of the Supreme Court- or O’bama. Dear God help us all. Follow the Constitution, it will not lead us astray.

Report this

By samosamo, April 22, 2010 at 8:54 pm Link to this comment

Another reasonable thing to do, but look what you’re saying,
create term limits for U.S Justices. Why as sure as the sun rises in
the east every morning, this new corporate paid, CSCOTUS, it
wouldn’t take this traitor, roberts and his conservative
henchmen 20 minutes to over turn the new law once signed and
o would be the perfect and most happy person to be a part of
the fastest overturn of a bill signed into law.

Report this

By ofersince72, April 22, 2010 at 7:50 pm Link to this comment

We are all for it probably, but we are stuck,
same with campaign finance reform, everybody has wanted
for years and years, we got McCain, Feingold.

Obama must really some delemmas it is taking him so long.
“Oh, what to do Michelle,  I have thumbed my nose at the
progressives for over a year now, if I do again, I will
never get re-elected,  but my bosses over Madison
Avenue, they are telling me to do another thing. I am
so confused.”

Report this
Newsletter

sign up to get updates


 
 
 
 
Join the Liberal Blog Advertising Network
 
 
 
 
 
 
 

A Progressive Journal of News and Opinion. Editor, Robert Scheer. Publisher, Zuade Kaufman.
© 2013 Truthdig, LLC. All rights reserved.