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Supreme Court justices should have age requirements, not term limits

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supreme court
Term limits would
eliminate a consequence of life tenure that is an essential
feature of our democracy: the Court’s relative lack of
volatility.

Jonathan
Ernst/Reuters


  • Supreme
    Court
    justices serve a life term once nominated and
    confirmed by the US Senate. 
  • Whenever a
    Supreme Court justice retires
    or passes away, there is
    often a political debate about nominations and the court’s
    ideology.
  • While some think term
    limits
    could discourage
    justices
    from retiring with political motivations, and
    encourage fresh perspectives, this is not necessarily the
    case. 
  • Matthew Stanford, a California attorney, says term
    limits would not depoliticize the retirement or
    selection process
    .
  • Instead, he suggests that age requirements could better
    solve some of these issues, while maintaining a core feature of
    the Supreme Court: the relative lack of
    volatility.

Whenever a Supreme
Court
justice


retires

or

passes
away


, the conversation
inevitably turns to term limits. As it should:


Most voters

favor capping justices’ time on
the Court, and it has rare


bipartisan
appeal


. Even the
current chief justice endorses the idea—or at least


he did

.

The supposed benefits of term
limits are alluring. An


18-year, non-renewable
term


, for instance,
would make vacancies more predictable, granting each president
two nominations per term. Assuming nobody dies or retires, no
single president could handpick a majority of the Court.

Possible consequences of steady
turnover provide additional fodder for term limit proponents:
theoretically, term limits would end socially disconnected
rulings and politically motivated retirements, and increase the
likelihood of a court with an array of ideologies and fresh
perspectives.

But let’s consider the possible
benefits realistically.

It’s likely that term limits would not prevent
politically motivated justices from retiring during a favored
administration, even by cutting their own terms short.

In fact, scheduling two vacancies
per term could actually make this more appealing. Using the
current composition of the Court as an example, consider the
following hypothetical:


Justices Ginsburg
and Breyer have terms that are set to
expire before the 2020 election. Assume that the current
administration is expected to lose reelection. Preferring not to
have their seats filled by a Democratic president, Justices
Thomas and Alito, whose terms will expire after the election,
retire early. The outgoing president would get
two more nominations
at the expense of the next
administration.

It’s easy to imagine the
political turmoil that would ensue — especially in light of
the


emergent view

that vacancies created in an
election year should only be filled after the ballots have been
counted.

And plugging this loophole would
be tricky. As recent events might suggest, if there were an
unexpected vacancy on the court before the end of a presidential
term, neither law nor custom could prevent a
determined Senate
from nominating a candidate that aligns
with their ideology and filling that vacancy before the next
inauguration. Only a constitutional amendment could do
that.

Otherwise, retirement games
wouldn’t simply persist; they would worsen. Ironically, term
limits would raise the stakes.

Nor is an increase in ideologies or perspectives a
given.

Term limits won’t depoliticize
the selection process — it won’t prevent either party from using
its preferred litmus tests for identifying potential justices.
There is already ample concern about


nominee reluctance

to discuss candidly their legal
philosophies at confirmation hearings. Term limits might create
predictable vacancies, yet it’s still largely unknown how that
could impact prospective nominees

One thing term limits might reduce is the perceived
disconnect between the realities of life-tenured justices and
ordinary citizens.

But this problem is only
partially related to the length of a justice’s term, and it
assumes that age is a reliable proxy for social
consciousness.

Even if that’s true, most of the
blame belongs elsewhere—namely, the custom of nominating Yale and
Harvard graduates holding some combination of prestigious
practice, judicial, and/or academic positions. Term limits would
do little to bridge the gap that makes the Court seem so
otherworldly.

Still, the term limit discussion
does raise an important consideration: modern life expectancies.
Though undeniably a good thing, longer lifespans mean longer
terms for justices. As Erwin Chemerinsky, Dean at Berkeley Law
and a constitutional law scholar,


explained

in The New Republic:

“Life expectancy is
dramatically longer today than when the Constitution was
written in 1787. The result is that Supreme Court justices are
serving ever longer, with the last four to leave the court
having served, on average, for 28 years. This trend is
continuing with the current court. Clarence Thomas was 43 when
he was appointed, and John Roberts and Elena Kagan were each 50
at the time of their appointments. If these justices serve
until they are 90–the age at which Justice John Paul Stevens
retired–they will have been on the bench for upwards of four
decades apiece.”

Even assuming, as Chemerinsky
seems to suggest, that longer terms are somehow antithetical to
our constitutional system, a more modest revision would address
this concern, and it would do so without sacrificing the judicial
independence that motivated the Founders to include life tenure
in Article III of the Constitution.

In fact, other provisions of the Constitution already
include such a safeguard: age requirements.

One must be 35 years old to run
for President or Vice President, 30 for Senator, and 25 for
Representative. (Whether those numbers ought also to be lifted is
a discussion for another day.)

If providing a counterbalance to
longer life expectancies is the core rationale for term limits, a
minimum age—perhaps 60 or 65 years old—could accomplish this
without the unintended consequences that term limits
threaten.

It also would likely be an easier
reform to implement. Although a constitutional amendment would be
the most ironclad approach, a statute or even a custom
establishing age requirements would likely suffice.

Finally, term limits would
eliminate a consequence of life tenure, intended or not, that has
become a unique, arguably essential feature of our constitutional
republic: the relative lack of volatility, for which the Court is
valued.

The Court is insulated from more
direct forms of democracy. The elevated role of precedent in the
work of the Court underscores this point. Even as the Founders
were careful to avoid establishing anything resembling the
British Crown, they nevertheless included life tenure in the 1787
Constitution. They presumably understood this to mean that
justices and judges alike would largely remain in office for the
remainders of their careers. Yet they included it anyway. Age, it
would seem, was seen as an asset to the work of the judiciary, a
feature of judicial independence rather than an oversight only
recently brought into focus by improved life expectancies.

Term limits would abolish this feature despite their more
modest purpose. A minimum age requirement would not.

The United States has the oldest
written constitution still in use today. It is not enough to
demand term limits simply because we are the only democracy that
extends life tenure to its judiciary.

Before we proceed to jettison the
order of constitutional elders that life tenure has effectively
molded within our courts over the past 229 years, we would be
wise to consider this less drastic alternative.


Matthew Stanford is a
California attorney and Senior Research Fellow at the California
Constitution Center. He is a graduate of Berkeley Law and Penn
State University.

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