The Kavanaugh case shows why the US Supreme Court needs to set term limits

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 per cent 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. 2

There’s no question that the court is graying. The justices nowadays retire at an average age of about 83 – a full decade later than they did half a century ago. They are also staying on the Supreme Court longer than ever before. Historically, justices have served an average of 16 years. The most recent 10 justices to leave the court averaged 25 years each. The first 10 averaged about seven.

Still, it’s not quite correct to suggest that term limits would bring the Supreme Court closer to the institution the founding generation imagined, when life tenure did not equate to life service. It’s true that justices served shorter terms. But few of them stepped down to pursue other careers. (John Jay and Benjamin Curtis were notable exceptions.) Even in the early republic, most served until death or until illness forced them to step down. Their terms were shorter because people didn’t live as long. 3

Nevertheless, there are multiple problems with life tenure. For one thing, justices may engage in “strategic” retirement, timing their decisions to coincide with the administration of a president they like (and, perhaps, a sufficiently friendly Senate). Then there’s the much-discussed question of what longer tenure does to the justices themselves. The estimable David Garrow contends, with entire seriousness, that the aging of the court causes problems of “mental decrepitude” among its members. (I’m hoping he’s wrong.) In addition, as my friend Gregg Easterbrook has recently warned, lengthy service might give the justices an inflated sense of their own importance. 4  In short, as the law professors Steven J. Calabresi and James Lindgren have argued, the system of life tenure “is essentially a relic of pre-democratic times.”

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. 

Consider that even before the allegations of sexual assault became public, opponents of Brett Kavanaugh were arguing that if confirmed, he would be a major influence on the development of constitutional law over the next three or four decades. That’s become a standard lament about the other party’s justices – but it’s also the reason that President Donald Trump, like President Barack Obama before him, is choosing them young. Seats are valuable, and each side wants to hold onto them for as long as possible.

The best way to create more seats is to limit the justices’ terms. But even 15 years now seems too long to quiet the battles.  In my book “The Confirmation Mess” – the title was as apt then as it is now – I suggested 8 or 12 years, but now I think the right figure is 9. Yes, nine – a vacancy every single year. Presumably you’re now recoiling in horror. Every year? Wouldn’t an annual vacancy just make things worse? Certainly there are prominent senators who seem to think so.

But maybe they’re wrong. After all, an open seat isn’t nearly as valuable to either side if both know there’s another guaranteed vacancy next year. No president will be tempted to create a judicial legacy by choosing nominees who will serve for decades; no opponent will see the confirmation of the wrong nominee as a lost opportunity that will not present itself again for a long time. And every president will have exactly the same opportunity to select exactly the same number of justices per term. No more of the unseemly death watch, wherein partisans sit around hoping this justice or that one will die at just the right moment.

What are the objections to this system? The first, of course, is that a constitutional amendment would be required. 5   But suppose we could surmount that admittedly high barrier. Surely the biggest problem is what a retired justice would do next. My answer in the past has been that the former justice can go back to being a life-tenured judge on another court.

The trouble is that many wouldn’t want to – not after nine years at the very summit of the profession. Yet federal judges who have stepped down to practice law have often been accompanied by charges of conflict of interest, 6   leading some scholars to argue that former justices should be prohibited from practicing law entirely. I’m uneasy with going quite that far – but the difficulty is a real one.

Nevertheless, I adhere to the view that the justification for life tenure, if one ever existed, expired long ago. If we want to cut down on the carnage, let’s try something new: supply and demand.