It probably wasn’t the greatest idea in the world for President Obama to gripe the other day about the “unelected group of people” on the Supreme Court who might “overturn a duly constituted and passed law” (i.e., Obamacare). Those unelected justices have had the power to overturn laws ever since Marbury vs. Madison, a fact that appeals court Judge Jerry Smith, who apparently is an obnoxious bully, this week required the Justice Department to reaffirm in a letter of no less than three single-spaced pages. (I like that Attorney General Eric Holder showed a little defiance by going only about one-third of the way down page three.) Judicial review is an important component to our nation’s system of checks and—Christ, now Smith’s got me doing it! Anyway, I can relate to the president’s frustration. But I think I have a better way to address it. Why not impose term limits on Supreme Court justices?
I’ve never liked the idea of term limits for members of Congress, because if a member outstays his or her welcome voters get the chance every two or six years to hire a replacement. But term limits for judges—not just Supreme Court justices—make a certain amount of sense when those judges are appointed. For all their clairvoyance, the Founders couldn’t possibly have anticipated the impact that longer life spans would have on lifetime judicial appointments. As Northwestern’s Steven Calabresi and James Lindgren have pointed out, between 1789 and 1970 the average tenure of a Supreme Court justice was about 15 years—and that timespan includes the 29-year service of Oliver Wendell Holmes, Jr., a Civil War veteran who didn’t vacate the bench until 1932, at age 90. Since 1970 the average tenure has expanded to about 26 years. By longevity if not by eminence, Holmses are a dime a dozen today. Until John Paul Stevens retired in 2010, fully one-third of the Supreme Court were appointees not merely of presidents who had since died, but of presidents who, before they died, lived longer than any others in history. (That would be Reagan and Ford, who departed this vale of tears at 93. The previous record-holder was John Adams, an 18th-century outlier who lived to 90.) Dead presidents shouldn’t have that much power.
Life terms might make sense if Supreme Court justices had life spans comparable to those of rock stars. But they don’t. Possibly because they don’t typically abuse drugs, or possibly because they don’t fly as often on private planes, Supreme Court justices live much, much longer than rock stars. And because they usually aspire to leaving office feet first—a goal often met—they’re much more likely to become gaga on the job. Another problem is that longevity has made the Supreme Court confirmation process extremely partisan and contentious—the stakes are just too absurdly high. The era of bitter Supreme Court confirmation fights—some say the era of bitter partisan politics in general—began in 1987, when Democrats defeated Reagan’s nomination of Robert Bork. That was a quarter-century ago, and if Sen. Ted Kennedy, D.-Mass., hadn’t played it pretty rough (“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution,” etc.) then Bork, who turned 85 last month, would probably still be sitting on the Court.
Term limits are a conservative idea (when he was still in the GOP nomination race Rick Perry favored limits for Supreme Court justices) but they’ve also become popular lately among liberals: Rick Hertzberg, Matt Yglesias, and my esteemed predecessor in this space, Jonathan Chait, have all come out for it. Wishing for term limits sure feels healthier than wishing that whatever voting bloc you happen to dislike crosses a six-lane highway against the light to buy ice cream cones and gets flattened by a tractor trailer.