Having read the back-and-forth between Andy and me (links here) — as well as some of the other debate in the blogosphere — Justin Crowe and Chris Karpowitz send these thoughts:
bq. First, thanks to John and Andrew for carrying on a lively discussion about this topic! John has done such an able job articulating our main points that we don’t have all that much to add, but we did want to put in a few words. We believe this issue is best discussed with the aid of data, and we hope our article is a helpful addition to the discourse for that reason. Too much of the popular and academic debate has proceeded without a careful understanding of tenure patterns on the Court, and often, demands for reform cite increasing average tenures as the primary reason for action. As John notes, our article makes the point that increased average tenure is a fact, but it is not the result of a significant increase in excessively long terms, as many advocates of reform speculate. Rather, in the post-Great Society era, we no longer have short-term justices, who had often been a feature of the Court in prior eras. As we detail in the article, there have been multiple moments in the past 40 or so years during which short-term justices might have come to fruition, and while there is certainly (as commenters have noted) an incentive in a system of life tenure for presidents to seek young-ish justices, we don’t see short-term justices as impossibilities in the future. All this to say that it’s not clear to us that the past several decades aren’t simply an exception to a more long-term historical rule.
bq. Our argument is not that the Court was always wonderful in the past, nor is it that the short-term justice was a distinguished jurist whose disappearance we ought to lament (precisely the opposite, in fact). Rather, we posit that if journalists, law professors, and political scientists are worried about increasing average tenure, they ought to understand the source of those increasing averages, and their prescriptions ought to be tailored to the source of the problem. A good prescription depends on a correct diagnosis of the illness. Eighteen-year term limits may be a good idea for other reasons, but getting at the source of the recent increase in average tenure is not one of them.
bq. Finally, a few words about Andrew’s meta argument. It is true that we are a bit skeptical about the term limit reform, but that is not necessarily because we do not like reform of any kind. Rather, the point we make in our article is that the value of term limits ought to be weighed against other important constitutional values (like judicial independence) and against other potential consequences of the reform (like how certainty about terms might impact other aspects of confirmation politics and judicial behavior). When we weigh the benefits and drawbacks, we are not certain that imposing an eighteen-year limit is actually an improvement.