Menus Subscribe Search

Rejecting Term Limits for the Supreme Court

• April 13, 2012 • 11:11 AM

Political scientists studying the U.S. Supreme Court say the problem isn’t how long justices serve overall but that there’s no short-termers in the mix.

Today’s U.S. Supreme Court justices, critics cry, are serving longer than ever (darned improved life expectancy!). And because these people just won’t go away, the court risks becoming an institution where ideological swings have long-lasting impact (or damage), and where present decisions are made by justices grounded in the past.

So legal scholars and amateur court watchers are at it again, agitating for the end of life terms on the nation’s highest court.

One oft-quoted and particularly alarming statistic, from Northwestern’s Steven Calabresi and James Lindgren, shows that average tenure by Supreme Court justices has more than doubled since 1970, relative to the preceding two centuries of court history.

This impression, however, is a bit misleading, and we may not want to hang permanent change on it. Justin Crowe and Chris Karpowitz questioned this in a 2007 study that has renewed relevance today. Until George W. Bush appointed Chief Justice John Roberts in 2005, the court had gone 11 years without a single vacancy. And this, too, prompted a flurry of calls for term limits.

“When there’s not a lot of turnover, people get a little antsy for a variety of reasons,” said Crowe, who is now an assistant professor of political science at Williams College. And people then give a variety of arguments for why term limits would now be a good idea. “But a lot of them are based on what Chris and I have found in this article to be a flawed quantitative measure. They keep coming back to people serving longer and longer tenures. It’s mildly true, but not true to the same extent they want it to be true.”

What’s so unusual about these last four decades, Crowe and Karpowitz counter, is not that long-serving justices have been refusing to retire; it’s that short-term justices have gone practically extinct.

We seldom think about these characters in court history. By definition they didn’t last long enough to leave much impression. But they’ve played a significant role in dragging down average tenures on the court throughout history — and the fact that they no longer exist skews our perception of what’s going on with the court today.

Crowe and Karpowitz define short-termers as those justices who served less than eight years, or two presidential terms. Before 1970, one in every three justices was a short-termer. Since then, the court hasn’t had a single one (although recent appointees Roberts, Samuel Alito, Sonia Sotomayor, or Elena Kagan could bail in time to make the cut).

Put another way: The U.S. is (easily) in the midst the longest period, 42 years and counting, it’s seen without a short-term justice.

[class name="dont_print_this"]

Idea Lobby

THE IDEA LOBBY
Miller-McCune's Washington correspondent Emily Badger follows the ideas informing, explaining and influencing government, from the local think tank circuit to academic research that shapes D.C. policy from afar.

[/class]

Who were these historic short-termers, and where have their heirs gone? Surely you remember Benjamin Curtis, Sherman Minton, and Thomas Johnson. This last character was on the court for only 14 months — the shortest term in history — and he resigned, Crowe and Karpowitz write, “upon learning that Chief Justice Jay would not rotate circuit assignments, thereby dooming Johnson to toil in the extreme southern heat.”

Such a scenario is obviously unlikely to happen in the modern era of air conditioning. John Jay also left the court for reasons that are hard to imagine recurring today: He was elected governor of New York (Governor Sonia Sotomayor, anyone?). In fact, just about all of the explanations Crowe and Karpowitz list seem quaint in 2012.

By their count, the short-termers left for four primary reasons: scandal, illness or death, boredom or political ambition. Almost all of these seem obsolete today (except, try as critics might, for scandal).

“We’re unlikely to see the return of people who serve on the court for four years,” Crowe said, “because they get tuberculosis and die.”

It’s also highly unlikely on today’s court that we’d see anyone professing boredom, or itching to run for office.

Crowe is not convinced, though, that the extinction of the short-term justice is final. Perhaps this is just a phase. Maybe we’ll go back to seeing more Sherman Mintons (we came so close with Harriet Miers!). We may have cured tuberculosis and court boredom. But there’s no reason we couldn’t once again see justices who retire early simply because they have other things they’d like to do.

Today’s justices without political ambition (or really any ambition outside the courtroom) reflect identical backgrounds in Ivy League law schools and Circuit Court benches. A more relevant criticism about the court today is not that justices serve too long — and grow out of touch over time — but that they’re out of touch in some ways to start with.

The Citizens United campaign finance decision, for example, was decided by a court without a single justice holding any experience in how elections actually work (to borrow a gripe from John McCain). And this was a common refrain during the health care oral arguments: Does Justice Scalia really not know the difference between broccoli and health care?

Holding him to a term limit (the most popular model would set it at 18 years) would not change that. Complaints about the justices’ long tenures and homogenous backgrounds are often intertwined. But we might do something about the former simply by addressing the latter in the appointment process.

Crowe isn’t convinced of the other arguments for instituting term limits, even if the premise weren’t based on the faulty notion that justices are now sticking around far longer than ever. Advocates of the idea predict we’d have less politically nasty confirmation battles if they occurred more often (or would we just be embroiled in an eternally nasty political spat?). And they say term limits would prevent the bench from filling up with lifers who‘d represent the “dead hand of the past.” Do we really want, they ask, Bush and Obama appointees making decisions from the bench in 2030? Surely our national politics will have evolved by then (at least, partisans of both ends of the political spectrum hope so).

History offers us one other lesson about these periodic cries for Supreme Court reform: they blow over. Should the Supreme Court uphold the Affordable Care Act, Crowe suspects this round eventually will, too. He adds, channeling legal scholar Robert McCloskey, that the court in fact seldom lags too far behind, or forges too far ahead of the American people.

“It blows over in part because it’s hard to sustain a long period of going against democratic majorities,” Crowe said. This was true even during the 1930s, when judges largely appointed before the Great Depression were tasked with reviewing legislation created to address it. “Ultimately, the court falls in line, the court does what democracy wants. And the court realized the American people wanted the New Deal.

“Empirical work shows that to the extent the court does represent the so-called ‘dead hand of the past,’ that the court is tied to older ways of thinking rather than new ones, that effect only lasts for a relatively short period of time. Because change does happen; new justices do come on the court.”

Emily Badger
Emily Badger is a freelance writer living in the Washington, D.C. area who has contributed to The New York Times, International Herald Tribune and The Christian Science Monitor. She previously covered college sports for the Orlando Sentinel and lived and reported in France.

More From Emily Badger

A weekly roundup of the best of Pacific Standard and PSmag.com, delivered straight to your inbox.

Recent Posts

September 1 • 1:00 PM

Television and Overeating: What We Watch Matters

New research finds fast-moving programming leads to mindless overeating.



September 1 • 6:00 AM

Why Someone Named Monty Iceman Sold Doogie Howser’s Estate

How unusual names, under certain circumstances, can lead to success.



August 29 • 4:00 PM

The Hidden Costs of Tobacco Debt

Even when taxpayers aren’t explicitly on the hook, tobacco bonds can cost states and local governments money. Here’s how.


August 29 • 2:00 PM

Why Don’t Men and Women Wear the Same Gender-Neutral Bathing Suits?

They used to in the 1920s.


August 29 • 11:48 AM

Your Brain Decides Whether to Trust Someone in Milliseconds

We can determine trustworthiness even when we’re only subliminally aware of the other person.


August 29 • 10:00 AM

True Darwinism Is All About Chance

Though the rich sometimes forget, Darwin knew that nature frequently rolls the dice.


August 29 • 8:00 AM

Why Our Molecular Make-Up Can’t Explain Who We Are

Our genes only tell a portion of the story.


August 29 • 6:00 AM

Strange Situations: Attachment Theory and Sexual Assault on College Campuses

When college women leave home, does attachment behavior make them more vulnerable to campus rape?


August 29 • 4:00 AM

Forgive Your Philandering Partner—and Pay the Price

New research finds people who forgive an unfaithful romantic partner are considered weaker and less competent than those who ended the relationship.


August 28 • 4:00 PM

Some Natural-Looking Zoo Exhibits May Be Even Worse Than the Old Concrete Ones

They’re often designed for you, the paying visitor, and not the animals who have to inhabit them.


August 28 • 2:00 PM

What I Learned From Debating Science With Trolls

“Don’t feed the trolls” is sound advice, but occasionally ignoring it can lead to rewards.


August 28 • 12:00 PM

The Ice Bucket Challenge’s Meme Money

The ALS Association has raised nearly $100 million over the past month, 50 times what it raised in the same period last year. How will that money be spent, and how can non-profit executives make a windfall last?


August 28 • 11:56 AM

Outlawing Water Conflict: California Legislators Confront Risky Groundwater Loophole

California, where ambitious agriculture sucks up 80 percent of the state’s developed water, is no stranger to water wrangles. Now one of the worst droughts in state history is pushing legislators to reckon with its unwieldy water laws, especially one major oversight: California has been the only Western state without groundwater regulation—but now that looks set to change.


August 28 • 11:38 AM

Young, Undocumented, and Invisible

While young migrant workers struggle under poor working conditions, U.S. policy has done little to help.


August 28 • 10:00 AM

The Five Words You Never Want to Hear From Your Doctor

“Sometimes people just get pains.”


August 28 • 8:00 AM

Why I’m Not Sharing My Coke

Andy Warhol, algorithms, and a bunch of popular names printed on soda cans.


August 28 • 6:00 AM

Can Outdoor Art Revitalize Outdoor Advertising?

That art you’ve been seeing at bus stations and billboards—it’s serving a purpose beyond just promoting local museums.


August 28 • 4:00 AM

Linguistic Analysis Reveals Research Fraud

An examination of papers by the discredited Diederik Stapel finds linguistic differences between his legitimate and fraudulent studies.


August 28 • 2:00 AM

Poverty and Geography: The Myth of Racial Segregation

Migration, regardless of race, ethnicity, gender, or sexuality (not to mention class), can be a poverty-buster.


August 27 • 4:00 PM

The ‘Non-Lethal’ Flash-Bang Grenades Used in Ferguson Can Actually Be Quite Lethal

A journalist says he was singed by a flash-bang fired by St. Louis County police trying to disperse a crowd, raising questions about how to use these military-style devices safely and appropriately.


August 27 • 2:00 PM

Do Better Looking People Have Better Personalities Too?

An experiment on users of the dating site OKCupid found that members judge both looks and personality by looks alone.


August 27 • 12:00 PM

Love Can Make You Stronger

A new study links oxytocin, the hormone most commonly associated with social bonding, and the one that your body produces during an orgasm, with muscle regeneration.


August 27 • 11:05 AM

Education, Interrupted

When it comes to educational access, young Syrian refugees are becoming a “lost generation.”


Follow us


Subscribe Now

Your Brain Decides Whether to Trust Someone in Milliseconds

We can determine trustworthiness even when we’re only subliminally aware of the other person.

Young, Undocumented, and Invisible

While young migrant workers struggle under poor working conditions, U.S. policy has done little to help.

Education, Interrupted

When it comes to educational access, young Syrian refugees are becoming a “lost generation.”

No, Smartphone-Loss Anxiety Disorder Isn’t Real

But people are anxious about losing their phones, even if they don’t do much to protect them.

Being a Couch Potato: Not So Bad After All?

For those who feel guilty about watching TV, a new study provides redemption.

The Big One

One in two full-time American fast-food workers' families are enrolled in public assistance programs, at a cost of $7 billion per year. July/August 2014 fast-food-big-one

Copyright © 2014 by Pacific Standard and The Miller-McCune Center for Research, Media, and Public Policy. All Rights Reserved.