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Term limits for Supreme Court justices

Not that it's going to happen, but the retirement of Justice John Paul Stevens and the focus on the age of President 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 counter-example. 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 terrific justices, 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.

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.

By Ruth Marcus  | April 22, 2010; 2:59 PM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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I just don't understand how this would be constitutional unless enacted via amendment. It's pretty clear that SCOTUS has lifetime appointments.

Also not sure if I want to emulate the judicial systems of other countries.

Posted by: blenderboy5 | April 22, 2010 5:24 PM | Report abuse

Like most of the baby boomers you are lost in your peurile need to appear relevant by incessant activity. The ideal candidate for the Supreme Court is an individual who understands the difference between activity and achievement, age and wisdom, anger and passion, and the ability to sometimes simply sit on the porch and examine. Term limits are not necessary in any form of government if we just take the time to slow down and take a good look at the people we are asking to tend the crops.
The trembling Earth is telling us we need to do this. I don't mean to offend, but you have to imagine what it is like to see people of privilege living to extend that privilege when a little sacrifice, and a vacation from the decadence will serve so many who are just as relevant to the Human good.

Posted by: Humbleprimadivoi | April 22, 2010 5:40 PM | Report abuse

Are you kidding with this statement "As a general matter, term limits for public officials are a bad idea; they deprive the public of wisdom born of experience." Seems to me the alleged wisdom born of experience has gotten us into the mess we are in now, i.e., $50 trillion of unfunded liabilities for social security, medicare, etc. If politicians knew their terms were limited, maybe they wouldn't spend half their time trying to assure their re-election by buying the votes of their constituents with promises they can't keep (or won't be around to) and the other half selling their votes to lobbyists and special interests. It's no wonder even left-of-center moderates like me are fed up with Washington.

Posted by: lmacmil | April 22, 2010 7:10 PM | Report abuse

"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."

Reminds me of a popular saying when I was in high school: "That is what you get for thinking."


Posted by: GaryEMasters | April 23, 2010 4:54 AM | Report abuse

Yonkers, New York
23 April 2010

I fully agree with Ruth Marcus's suggestion of term limits for Supreme Court justices.

That limit should be set at age 80. A supreme court justice who turns 80 should be subject to mandatory retirement.

I know that this will require amending the U.S. Constitution. But so what? Let's do it.

Mariano Patalinjug

Posted by: MPatalinjug | April 23, 2010 6:33 AM | Report abuse

Why is it I think this column is written because Marcus is a liberal and the three longest serving justices (who have served 18 years) are conservative Republicans?

It would take a constitutional amendment.

As for Stevens, we do not know how sharp he is as he is never on TV and only receives sympathetic interviewers. Perhaps if he went on Sean Hannity some night for a half hour, no holds barred interviewed, we'd find out if he is really sharp or just has excellent law clerks and toadying interviewers.

Posted by: Nemo24601 | April 23, 2010 9:33 AM | Report abuse

If some lawyers think legislation could do the trick; they have done it already.

All legislation is subject to Supreme Court Jurisdiction; I don't think it would hold up.

Bush can Conspire with Republicans to pass the Military Commissions Act of 2006 to grant himself Immunity from Prosecution for War Crimes; essentially signing himself a pardon. Why doesn't anyone Care about that?

Posted by: ddoiron1 | April 23, 2010 9:34 AM | Report abuse

Marcus is one of those on the left who think the founding fathers didn't think things through. The Supreme Court, by design, is intended to be conservative. There job is to remind and correct people who step over the limits of constitutional authority. They are supposed to be a bulwark against popular sentiment that is against the nature of our republic. This article is just another example of the lefts contempt for the constitution as the law of the land.

Posted by: kroverstreet | April 23, 2010 10:38 AM | Report abuse

Three longest serving once Stevens retires, I should have said.

Posted by: Nemo24601 | April 23, 2010 10:49 AM | Report abuse

Ruth Marcus is wrong about term limits for Supreme Court justices, wrong on the facts, wrong on the purpose and wrong on the effect. It is not Supreme Court Justices that have life tenure it is federal judges of whom the Justices of the Supreme Court are only the most senior. Start changing that for the Justices and it cannot be long before someone suggests we revisit the issue for all federal judges. And why did the Founders give federal judges life tenure? Because they understood that it was the only real way to shield them from political pressure by the other two branches and from society in general. Judges have families, judges have children, judges need incomes to live. Challenge their ability to make unbiased decisions by threatening them with loss of their livelihood and you have a judiciary in thrall to the political powers that be.
As far as life tenure meaning that some Presidents get to appoint one or more justices and some do not get to appoint any, so what? It is not a perk of the job, like getting to use Camp David on the weekend. It is choosing judges for the highest court in the land. The Court's greatest strength is the sense of the public that it is not the third POLITICAL branch of government.
Finally some of the greatest justices to sit on the Court have served into advanced ages. And often they have matured and developed in the job and written some of their best opinons in later years. Ending life tenure for the justices woud deprive future generations of that potential wisdom.

Posted by: paulvamvas | April 23, 2010 10:52 AM | Report abuse

>> Perhaps if he went on Sean Hannity some night for a half hour...

Bush and Cheney are gone - torture is illegal again.

Posted by: A_Reader | April 23, 2010 10:55 AM | Report abuse

You cannot force a federal judge to retire, because the Constitution says "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."

I personally have no problem with requiring Federal judges to have annual physical and mental health examinations over the age of 70. Let's face it, the odds are that Stevens is fairly gaga, given the track record of Supreme Court justices of his age and service. Both Holmes and Douglas, the only comperables, were pretty much brain dead by the time they retired. Holmes' law clerks were selected to be nurses/personal attendants as well as their normal functioning. How do we know he was gaga? Well, he selected Alger Hiss, which just goes to show.

Posted by: Nemo24601 | April 23, 2010 11:02 AM | Report abuse

I also cannot see how this would be Constitutional. And the argument that it would lessen the politics of the Court as justices time their departures, well, what about state of flux on the Court as justices come and go every so often? Furthermore, Marcus is correct in stating it is controversial to cite foreign law -- in this case, no other democratic nation has a high court with the same powers as our Supreme Court of the United States. Instituting term limits for justices is a bad idea.

Posted by: carstar88 | April 23, 2010 11:13 AM | Report abuse

Australia's High Court is the closest I can think of to ours. They do have a retirement age of 70, imposed by constitutional amendment approved by referendum in 1977.

Posted by: Nemo24601 | April 23, 2010 12:49 PM | Report abuse

I have no problem with term limits for SCOTUS. They can only serve one term. Of course, as per the Constitution, it's a lifetime term...

Posted by: lycg | April 23, 2010 3:41 PM | Report abuse

I wouldn't object, as long as the current bunch doesn't get "grandfathered" in!

Posted by: laboo | April 23, 2010 4:38 PM | Report abuse

One would think that term limits is the solution to our troubles with the supreme court and our congress, but it's not... if fact it will hurt us even more, check the story that changed my perspective on court term limits

Posted by: republicanblack | April 27, 2010 1:33 PM | Report abuse

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