Does SCOTUS Need Term Limits?

Many commentators have proposed fixed terms for Supreme Court justices. But how would such a move change the court?

In the wake of the confirmation of Elena Kagan to the Supreme Court, political commentators have been expressing a bit of frustration about polarization within the court and polarization in the nomination process.  One proposal that's been floating around is to replace lifetime appointments by fixed terms, perhaps twelve or eighteen years.  This would enforce a regular schedule of replacements, instead of the current system in which eighty-something judges have an incentive to hang on as long as possible so as to time their retirements to be during the administration of a politically-compatible president.

A couple weeks ago, my colleague John Sides discussed some recent research that was relevant to the judicial term limits proposal.  Political scientists Justin Crowe and Chris Karpowitz analyzed the historical record of Supreme Court terms and found that long terms of twenty years or more have been happening since the early years of the court.  Yes, there is less turnover than there used to be, but that is a product not so much of longer terms at the high end but of fewer judges serving very short terms.

Sides used this and other arguments to conclude that term limits for Supreme Court judges would not have much effect.

I saw John's blog and posted a disagreement, arguing that term limits could indeed have a large effect, and that, as political scientists, we shouldn't be so fast to dismiss proposed reforms.

John then replied to my arguments, again bringing in more research.

And then I replied to that.

Finally, political scientists Justin Crowe and Chris Karpowitz chimed in with their thoughts: "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."  I still disagree, but Crowe, Karpowitz, and Sides do make a larger point that is reasonable, which is to push the discussion toward the goals of the proposed reforms rather than to treat shorter terms as an end in themselves.

Beyond everything else, I'd hope that term limits would remove some of the mystique of the Supreme Court, starting with the idea that they're called "justices" rather than simply "judges," which is what they are. It's almost as if they are considered to be the personification of justice.

I agree with Crowe and Karpowitz that these problems are not new.  Roger Taney was 80 years old when he ruled on the Dred Scott case, which is, I believe, the consensus for the worst call in Supreme Court history. The case came on his 22nd year on the Court.