The Regulation of Turnover on the Supreme Court

Abstract

Over the past decade a dozen or so commentators have called for fixed terms of office for Supreme Court Justices. This Article presents a new and contrary analysis, treating life tenure as a regulatory regime that usefully can be unpacked into a number of components: (a) Justices serve into old age; (b) they serve for long periods of time; (c) they serve terms of varying lengths; (d) chances to appoint new Justices arise unpredictably; (e) chances to appoint new Justices arise irregularly; and (f) the Justices often decide for themselves when to leave the Court and thus who will pick their replacements. Age limits would target mostly (a), would have no effect on (c) or (e), and would work only partial or uncertain changes in the other respects just listed. Fixed terms have the potential to eliminate all of them. The Article concludes that age limits are worth serious consideration, but that most of the additional benefits provided by fixed terms would be illusory or likely to be offset by new problems they would cause, whether the new regime is adopted by constitutional amendment or (worse) by statute. The length of a Justice's tenure determines how often vacancies arise and thus how quickly electoral majorities can force tectonic changes in the law by remaking the Court. From this perspective the right length of judicial terms depends on how much we trust judgments by majorities over longer and shorter time periods; life tenure reflects a high and salutary distrust of short-term judgments. To state the point concretely, most proposals for fixed terms would ensure that every two-term president would substantially remake the Court, an outcome whose desirability is far from clear. The framework set out above also leads to various other conclusions. One is that the more carefully we try to distribute control over the political dimension of the Court's work, the larger that dimension is likely to get. Another is that in a regime of life tenure the Senate should play an active role in screening nominees to offset the arbitrary and lumpy way that nominating chances are distributed to presidents. Still another is that life tenure makes age more important than the other ways in which most nominees to the Court differ from their likely alternatives, and that a nominee's age thus deserves more attention than it currently gets.