Is It Time to Give Term Limits to Supreme Court Justices?

Our highest court is now polarized along partisan lines in a way that parallels other political institutions and the rest of society.

U.S. Supreme Court Chief Justice John Roberts (L) applauds with fellow Justices Anthony Kennedy (2nd from L), Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan (R) prior to President Barack Obama's State of the Union speech on Capitol Hill on January 28, 2014 in Washington, DC. In his fifth State of the Union address, Obama is expected to emphasize on healthcare, economic fairness and new initiatives designed to stimulate the U.S. economy with bipartisan cooperation. 
National Journal
May 21, 2014, 8 a.m.

This has been quite a time for an­niversar­ies: the 50th of the 1964 Civil Rights Act, the 50th of the Great So­ci­ety, the 60th of Brown v. Board of Edu­ca­tion. Each has pro­duced a flurry of cel­eb­ra­tions and ana­lyses, in­clud­ing the latest, on Brown. Here’s one more.

Ten years ago, on the oc­ca­sion of the 50th an­niversary of Brown, I at­ten­ded one of the most in­ter­est­ing and mov­ing pan­els ever. Yale Law School brought to­geth­er six lu­minar­ies who had been clerks to Su­preme Court justices dur­ing the de­lib­er­a­tions over the Brown de­cision. They talked about the in­tern­al dis­cus­sions and struggles to reach agree­ment, and the fact that the de­cision ac­tu­ally took two years. The justices — in­clud­ing Chief Justice Earl War­ren and Justices Hugo Black, Fe­lix Frank­furter, Sher­man Min­ton, and oth­ers — tried migh­tily to build a con­sensus. Whatever their ideo­lo­gic­al pre­dis­pos­i­tions, they all un­der­stood that this de­cision would al­ter the fab­ric of Amer­ic­an so­ci­ety. They also knew it would re­ver­ber­ate for a long time, ex­acer­bat­ing some deep-seated so­ci­et­al di­vi­sions even as it would heal so many oth­ers and right so many wrongs.

The two terms al­lowed the justices to reach a un­an­im­ous con­clu­sion. Af­ter­ward, Frank­furter penned a hand-writ­ten note (to young people: There ac­tu­ally were such things in olden times be­fore text mes­sages and tweets) to War­ren that read: “Dear Chief: This is a day that will live in glory. It is also a great day in the his­tory of the Court, and not in the least for the course of de­lib­er­a­tion which brought about the res­ult. I con­grat­u­late you.”

As I read that let­ter, I thought about what would have happened if the cur­rent Su­preme Court were trans­por­ted back to de­cide Brown. Two years of de­lib­er­a­tion? No way. Un­an­im­ous or even near-un­an­im­ous de­cision? For­get it. The de­cision would have been 5-4 the oth­er way, with Chief Justice John Roberts writ­ing for the ma­jor­ity, “The way to stop dis­crim­in­a­tion on the basis of race is to stop dis­crim­in­at­ing on the basis of race” — leav­ing sep­ar­ate but equal as the stand­ard. The idea that find­ing un­an­im­ity or near-un­an­im­ity was im­port­ant for the fab­ric of the so­ci­ety would nev­er have come up.

Re­cent ana­lyses have un­der­scored the new real­ity of today’s Su­preme Court: It is po­lar­ized along par­tis­an lines in a way that par­al­lels oth­er polit­ic­al in­sti­tu­tions and the rest of so­ci­ety, in a fash­ion we have nev­er seen. A couple of years ago, Dav­id Paul Kuhn, writ­ing in The At­lantic, noted that the per­cent­age of rul­ings by one-vote mar­gins is high­er un­der Roberts than any pre­vi­ous chief justice in Amer­ic­an his­tory. Of course, many de­cisions are un­an­im­ous — but it is the tough, di­vis­ive, and most im­port­ant ones that end up with the one-vote mar­gins.

The New York Times‘s Adam Lip­t­ak weighed in re­cently with a piece called “The Po­lar­ized Court,” in which he said, “For the first time, the Su­preme Court is closely di­vided along party lines.” Scott Lemieux, in The Week, noted fur­ther that the po­lar­iz­a­tion on the Court, like the po­lar­iz­a­tion in Con­gress, is asym­met­ric; con­ser­vat­ive justices have moved very sharply to the right, lib­er­als a bit more mod­estly to the left. Much of the move­ment did oc­cur be­fore Roberts was el­ev­ated to the Su­preme Court, but his lead­er­ship has sharpened the di­vi­sions much more, on is­sues ran­ging from race and vot­ing rights to cam­paign fin­ance and cor­por­ate power.

How did we get here? As polit­ics have be­come po­lar­ized and as two-party com­pet­i­tion in­tens­i­fied, con­trol of the courts — which are in­creas­ingly mak­ing ma­jor policy de­cisions — be­came more im­port­ant. With life­time ap­point­ments, a party in power for two or four years could have sway over policy for dec­ades after it left power. But to en­sure that sway meant pick­ing judges who were vir­tu­al locks to rule the way the party in power wanted. That meant track re­cords in ju­di­cial opin­ions, and that in turn meant choos­ing sit­ting judges to move up to the Su­preme Court. It also meant choos­ing young­er in­di­vidu­als with more ideo­logy and less season­ing; bet­ter to have a justice serving for 30 years or more than for 20 or less.

The War­ren Court that de­cided Brown had five mem­bers who had been elec­ted to of­fice — three former U.S. sen­at­ors, one of whom had also been may­or of Clev­e­land; one state le­gis­lat­or; and one gov­ernor. They were ma­ture, they un­der­stood the law, but also un­der­stood polit­ics and the im­pact of their de­cisions on so­ci­ety. As a con­sequence, they did not al­ways vote in pre­dict­able fash­ion. Only one of the justices, Sher­man Min­ton, had served on a U.S. ap­pel­late court — and he had been a sen­at­or be­fore that ap­point­ment.

Now, zero mem­bers of the Su­preme Court have served in elect­ive of­fice, and only Steph­en Brey­er has had sig­ni­fic­ant ex­per­i­ence serving on a staff in Con­gress. Eight of the nine justices pre­vi­ously were on U.S. courts of ap­peal. Few have had real-world ex­per­i­ence out­side of the leg­al and ju­di­cial realm. And few of their opin­ions and de­cisions come as sur­prises. That is not to say that all the justices are naïve (al­though An­thony Kennedy’s opin­ion in Cit­izens United, blithely dis­miss­ing the idea that there could be any cor­rup­tion in cam­paign money spent “in­de­pend­ently” in cam­paigns, was the epi­tome of na­iv­ete). Roberts is polit­ic­al in the most Ma­chiavel­lian sense; he un­der­stood the zeit­geist enough to re­peatedly as­sure the Sen­ate dur­ing his con­firm­a­tion hear­ings that he would strive to is­sue nar­row opin­ions that re­spec­ted stare de­cis­is and achieved 9-0 or 8-1 con­sensus, even as he lay the ground­work dur­ing his ten­ure for the op­pos­ite. His sur­pris­ing rul­ing on the Af­ford­able Care Act was clearly done with an eye to­ward soften­ing the cri­ti­cism that was sure to come with the series of 5-4 de­cisions on cam­paign fin­ance and vot­ing rights that lay ahead.

With a Court that is in­creas­ingly act­ive in over­turn­ing laws passed by Con­gress and check­ing pres­id­en­tial au­thor­ity when there is a pres­id­ent of the op­pos­ite party, that means nom­in­a­tions both to ap­peals courts and to the Su­preme Court have be­come in­creas­ingly di­vis­ive and po­lar­ized, for both parties. And the policy fu­ture of the coun­try de­pends as much on the ac­tu­ar­ial tables and the luck of the draw for pres­id­ents as it does on the lar­ger trends in polit­ics and so­ci­ety. We could have one one-term pres­id­ent shap­ing the Court for dec­ades, and an­oth­er two-term pres­id­ent hav­ing zero ap­point­ments. And we could end up with a Su­preme Court dra­mat­ic­ally out of step for dec­ades with the lar­ger shape of the so­ci­ety, and likely los­ing much of its prestige and sense of le­git­im­acy as an im­par­tial ar­bit­er, cre­at­ing in turn a ser­i­ous crisis of con­fid­ence in the rule of law.

For more than a dec­ade, I have strongly ad­voc­ated mov­ing to­ward term lim­its for ap­pel­late judges and Su­preme Court justices. I would like to have single, 18-year terms, staggered so that each pres­id­ent in a term would have two va­can­cies to fill. Do­ing so would open op­por­tun­it­ies for men and wo­men in their 60s, giv­en mod­ern life ex­pect­an­cies, and not just those in their 40s. It would to some de­gree lower the tem­per­at­ure on con­firm­a­tion battles by mak­ing the stakes a bit lower. And it would mean a Court that more ac­cur­ately re­flects the changes and judg­ments of the so­ci­ety.

If we could com­bine term lim­its for justices with a sens­it­iv­ity by pres­id­ents to find some judges who ac­tu­ally un­der­stand the real world of polit­ics and life, and not just the cloistered one of the bench, we might get some­where.

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