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On Limiting the Tenure of Supreme Court Justices, Part 3

- August 11, 2010

After my post, Andy and then Matt Yglesias took issue. Let me respond briefly. (NB: All of this debate necessarily entails the willing suspension of disbelief: we’re not enacting term limits for Supreme Court justices any time soon. But it’s still fruitful to debate the idea on its merits.)

Andy’s got 4 points. The first is on the Crowe and Karpowitz finding that it’s the short-term justices who have disappeared. Andy writes:

bq. That’s fine, but it doesn’t at all counter the argument that term limits will reduce the long terms.

Actually, it does counter the argument, if the proposal is rotating eighteen-year terms.

Only his fourth point really represents a disagreement with anything I wrote. Andy suggests that age could be a useful proxy for mental acuity:

bq. Yes, mental decline could strike even at a younger age. But there’s a correlation with age, no? It seems silly to dismiss this argument just because the correlation isn’t 100%.

It just seems to me that term limits are a pretty blunt instrument for ensuring mental acuity. See also Frank Cross’s comment.

Yglesias suggests these reasons for supporting term limits:

bq. …a less-random relationship between election outcomes and the composition of the judiciary.

bq. …the current system creates too many incentives for a physically or mentally incapacitated justice to try to hang on to his seat until someone more ideologically congenial gets into the White House.

bq. Conversely, the current system causes the age of a nominee to loom too large in the decision-making calculus.

Let’s tackle these in reverse order. This concern about the emphasis on young nominees is ubiquitous — see also Jon Bernstein and commenter Zorro for the Common Good. But the average age of the nominees isn’t really any different now than in the past. Go to p.801 of the Calabresi and Lindgren piece that James Fallows cites in his post on this subject. The average age of nominees was lower in the initial years of the Republic (about 48), but since then it’s varied between 52 and 57. The average in the period from 1971-2006 is 53 — down a little bit from the first half of the 20th century, but no different than it was for most of the 19th century. I doubt it can go much lower. It’s hard for potential nominees to be seen as sufficiently qualified for the Court otherwise.

Life tenure could create an incentive to nominate younger people, but it doesn’t seem to be happening in a real significant way. An average of 53 certainly doesn’t strike me as “too young.”

On the incentives for an incapacitated judge to hang on. It seems likely that this happens every once in a while. How serious a problem this is, I really don’t know.

On ending the randomness. See Bernstein here as well. It’s hard to make an argument in favor of randomness. But it’s worth point out that some things mitigate the consequences of the inherent unfairness that some presidents get to make lots of nominations and others get none.

* Justices may not retire until a like-minded president is elected.

* Justices may “drift” in terms of ideology, thereby making them less like the president that nominated and perhaps more like later presidents who didn’t get to nominate anyone or to nominate fewer justices.

* Justices will abide by precedent, at least in some cases.

* Justices are often sensitive to public opinion anyway, making their jurisprudence something other than a rubber stamp of their nominating president’s ideology.

I’m not suggesting that justices aren’t ideological, or that presidents don’t influence the direction of the Court with their nominees. They clearly do. I’m just saying that the “lucky” presidents who get to nominate a few justices may not necessarily get everything they want from these justices. That said, if one’s idea of fairness is that every president gets to nominate 3 justices, or whatever, none of my points will fully address this concern.

On the broader question of how we think about political reform. Yglesias writes:

bq. Sides is suffering a bit from an occupational hazard of political scientists confronted with proposals for reform—proponents oversell them, and political scientists become unreasonably skeptical in response.

He’s entitled to think me unreasonably skeptical. But here’s the problem, as I see it. Many proponents of political reform do not fully understand the “problem” in question. This is the case here, as Crowe and Karpowitz point out: people have assumed that longer mean tenure means an increasing number of longer-serving justices, and in fact that hasn’t happened. Therefore, they don’t propose a solution that would necessarily fix the problem. Like those 18-year terms for justices.

Most importantly, I don’t see enough people really thinking through the marginal costs and benefits of this reform or many others. (Calabresi and Brinton clearly do so, although I haven’t read their entire article closely.) People posit scenarios — like the doddering justice — without saying why the marginal costs associated with declining mental acuity are worse than the marginal costs of having even more divisive fights over nominees because of term limits. Are there real trade-offs to term limits in terms of the expertise of the Justices (as has been true for state legislators with term limits) and in terms of their camaraderie? Crowe and Karpowitz note that most of the short-term justices have been unimpressive. Why do we assume that term-limited justices would be any different? Etc.

So even if term limits might improve some things, they could make other things worse. Perhaps the net of that is positive, perhaps it is negative. I’m just interested in seeing people make the case in these terms.