We Need Term Limits for Judges
In Federalist No, 78, Alexander Hamilton famously argued that the federal courts were “the least dangerous” branch of government. What he did not understand was that they also proved, over time, to be the worst constructed. The problems here start at the top and work their way down to the bottom. As a recent New York Times column by Duke law professor Paul Carrington points out, the Constitution states that “the judges, both of the supreme and inferior Courts shall hold their offices during good behavior,” which, except in cases of corruption or moral turpitude, effectively means for life.
Big mistake. As Carrington notes, longer life spans now translate into terms of thirty or more years. The independence of the judiciary can be easily preserved with either term limits, say, of eighteen years, or a mandatory retirement age of seventy. Nearly every modern legal system understands the virtue of limiting judicial terms.
Unfortunately, Carrington’s preferred solution is no solution at all. He proposes appointing a new justice every two years. But, he writes, “only the nine most junior justices, by years of service, would sit and decide every case. The rest would then act as a sort of ‘bench’ team, sitting on cases as needed because of the disability or disqualification of one of the junior justices.”
Adding new justices would make the fate of major legislation turn on whether a substitute justice votes in a manner contrary to that of the full-time justice. This change won’t happen without a constitutional amendment, even though one that better solves our problems than Carrington’s proposal is easy enough to draft: “No Supreme Court Justice shall serve for a term of more than eighteen years.” Continue reading my column at Defining Ideas.
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Comments:
May '10
Re: We Need Term Limits for Judges
Absolutely we have the examples of (Thurgood) Marshall, Rhenquist, Blackmun, and more of justices incapacitated by age. Somewhere between the ages of 70 and 80 ( which is looking better to me all the time as I'm almost there) it's really time to move on because you simply just start to lose it.
Apr '11
Re: We Need Term Limits for Judges
Professor Epstein I whole heartedly agree with your assessment of the weakness of Mr Carrington's solution and efficacy of your own 18 year term limit/70 year age limit one.
Given the current atmosphere regarding the possible full or partial overturning of the president's signature piece of legislation, do you feel that conditions would be ripe for a drafting of such a constitutional amendment? If not, what would, in your opinion, provide the impetus for such a monumental change and where might it originate?
Oct '11
Re: We Need Term Limits for Judges
Perhaps a campaign for 18-year judicial term limits would go easier if combined with simple two-term congressional limits?
One can dream.
May '10
Re: We Need Term Limits for Judges
Dear Richard, when arguing among conservatives about the law and government, never tell us that we must conform to the standards of the rest of the world. That automatically makes the whole thing suspect.
Mar '12
Re: We Need Term Limits for Judges
But in this case, there is a reasonable argument for what other countries do. It's not a mere argument from authority.
If we have a living constitution, why do we need an amendment?
May '11
Re: We Need Term Limits for Judges
Professor, this was uninspiring. Not once do you explain why life appointments is a hazard that we should now avoid. Not once do you explain why 18 year terms would be better in any way.
Before we go amending the Constitution to completely disassemble the entire judiciary, perhaps you should first explain why it needs to be done.
May '11
Re: We Need Term Limits for Judges
And why 18 years? Why not 17.6 years? Why not 5 months? Why not 40 years? Why not have every case decided by judges chosen by a lottery?
Mar '12
Re: We Need Term Limits for Judges
There's an old argument, called "the argument of the heap." The gist of it is that it may be impossible to justify the exact place one draws a line, but that does not mean that the line is arbitrarily drawn. 17 v 18 years is quibbling. Suggesting 40 or 10 years is different. The former takes us back to the problem we now have. The former is so short that it raises the problem of many judges seeking other offices after their term expires--and hence potentially biasing their decisions.
Mar '12
Re: We Need Term Limits for Judges
Is there a constitutional case for someone to have the power of magistrates under our constitution? I suspect one could make an originalist argument for it--arguing that such power was still live in the 1780s in the U.S.
But adding such power to modern lawyers using social science creates a monster that perhaps was restrained by people trained in the common law tradition--at least as described by Coke, not so sure about Blackstone, who studied Civl Law first, if memory serves.
Oct '10
Re: We Need Term Limits for Judges
My suggestion from 2004, which would also require a constitutional amendment, is, I think, more along the lines of checks and balances than a hard limit, which history has shown may prove invalid as conditions change. (Who would have imagined in 1789 that a judge appointed at age 50 had a substantial probability, absent resignation, to serve another 35 years?)
Re-confirmation simply creates a feedback loop between the judiciary and legislative branches which is presently absent: what we have now is an open-loop system in which no means other than impeachment exists to remedy a bad decision in the confirmation process.
I don't think the length of the term before re-confirmation is as important as the existence of the mechanism—its very prospect in the future of every sitting judge will act to deter egregious acts of judicial entrepreneurism.
Edited on April 17, 2012 at 8:20pmMay '11
Re: We Need Term Limits for Judges
I hadn't thought of that. My main objection to short terms like nine or ten years is that they would allow any two-term president to appoint nearly all the members of the federal judiciary. With the latest trend of flipping the White House between parties every eight years you would have situations like the 1940's where FDR had appointed nearly every member of the Court quite often.
May '11
Re: We Need Term Limits for Judges
Scarlet, my point was that he gave no reason for 18 years, he just stated it as the ideal without any justification.
I don't see a problem with the judiciary. I think it works quite well. I think instead of getting rid of the way we allow Article III judges, we should do a massive overhaul of administrative law, such as at the EPA as an especially egregious example of late.
Mar '11
Re: We Need Term Limits for Judges
EJHill
Dear Richard, when arguing among conservatives about the law and government, never tell us that we must conform to the standards of the rest of the world. That automatically makes the whole thing suspect. · 8 hours ago
Amen, EJ.
I'd be fine with a ten or fifteen year term limit for judges. I'd only stipulate that this should be accomplished with Constitutional Amendment so that politicians couldn't monkey with the structure of SCOTUS. I'd like both term limits and structure of the court written in stone. Every time a President gets mad at the court, he alludes to changing it. At the same time, there's no doubt in my mind that the court is the most arrogant branch because it's the most untouchable branch. A term/structure amendment would help address both problems. We should have done this right after FDR floated his "stitch in time" threat against SCOTUS.