The Case for Judicial Term Limits

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Andrew Gelman and John Sides have an interesting exchange about the merits of creating fixed tenure for Supreme Court justices. I agree with Gelman that seems like a case where 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.

At any rate, I’m a proponent of this reform. The strongest argument I can make in favor is that it would create a less-random relationship between election outcomes and the composition of the judiciary. Right now, if John Roberts and Samuel Alito decided to go out on a double-date with their wives, and a drunk driver hits their car killing all four passengers, Barack Obama would wind up reshaping the course of American law for decades. If instead he merely found himself appointing replacements to serve out their terms we’d much reduce this kind of arbitrariness.

Then there are two related points. One is that 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. Conversely, the current system causes the age of a nominee to loom too large in the decision-making calculus. In exchange, life tenure accomplishes basically nothing that a longish fixed term plus a pension wouldn’t accomplish. America makes it hard to tinker with the constitution (a mixed bag, in my view) so this almost certainly won’t happen unless some turn of events focuses national attention on the potential problems embedded in the current system. But I think making the point that this is a bad system is important anyway, since there’s always the risk that foreign countries engaged in democratic transitions will decide to emulate our model.