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Our Term Limits Letter Signers Have a Lot to Say on SCOTUS Reform

Last week, 63 legal scholars signed a letter saying, “It’s time to reconsider life tenure at the Supreme Court.”

This week we’re highlighting what the letter signers have said about SCOTUS term limits in the past. 

Dean Erwin Chemerinsky of Berkeley Law has long advocated for 18-year term limits in his books and in op-eds. In 2013, he noted: 

“Eighteen years is long enough to allow a justice to master the job, but not so long as to risk creating a court that reflects political choices from decades earlier. Making the appointment nonrenewable helps ensure that a justice won’t decide cases in a way to help ensure reappointment.” 

Chemerinsky’s point is similar to one made by Prof. Jamal Greene of Columbia Law made in the New York Times in 2015: 

“Eighteen years would mean that a justice’s tenure would be long enough to ensure independence from political patronage. As important, it would be short enough to ensure that we remain a country of laws and not of men.” 

Norm Ornstein of the American Enterprise Institute has been another long time advocate for 18-year term limits, as he mentioned in his 2014 Atlantic article: 

“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.”

Prof. Bruce Ackerman of Yale Law also sees the young age of nominees, coupled with the increasing length of judicial tenures, as a problem that term limits could solve, as he wrote last year in the L.A. Times

“Term limits eliminate the temptation to stack the court with young and younger justices, thereby extending for decades the impact of the president and senators who first got them appointed. A fixed term would instead encourage the selection of mature jurists who have already marked themselves out by decades of distinguished service to their country.” 

Former U.S. Sen. Ted Kaufman pointed out the pratfalls in having such a long tenure for justices, writing earlier this year for Wilmington (Del.) News Journal

“Presidents should stop appointing young justices just so they will serve long terms on the court. It is not good to have major issues that require new approaches left in the hands of justices who have lived in the cloistered life of the Supreme Court for decades.”

Writing last year in The NationProf. Sandy Levinson of UT-Austin Law highlighted his concern that life tenure incentivizes strategic retirements:  

“[N]onrenewable 18-year terms […] would eliminate the ability of justices to time their resignations for political purposes.”

Prof. Alan Morrison of GW Law echoed Levinson’s point in a 2018 Hill op-ed: 

“It is vital for their independence that the justices not be kept on a short leash, but 18 years seems more than ample for that purpose. Life tenure might be better, but it is a luxury the country cannot afford given how the current confirmation process is working, or rather, not working. Equally as important is to regularize the appointments so that no justice can ever again decide, as Justice Anthony Kennedy did, to bestow the gift of a Supreme Court appointment on the president of his choosing.”

A law review article by NYU Law Prof. John Ferejohn describes how the political climate makes term limits necessary in order to maintain the Supreme Court’s institutional integrity: 

“It is doubtful that American judges protected by life tenure and chosen in partisan political processes can be relied upon to exercise precisely the kinds of nuanced restraint that would be called for. […] Fixing judicial terms would tend to alleviate such problems. Even if members did become extreme in some dimensions […], the fact that [their] terms would be restricted would keep the court consistently open to new political forces.”

In 2016, University of Chicago Prof. Harold Pollack insisted in Politico that the push for term limits be a bipartisan effort: 

“Both parties have some stake in fixing these problems. Fixed terms provide no specific advantage to either party. And in the long run, neither party particularly benefits from a random political crisis of the sort we are now experiencing.” 

Prof. Matt Seligman of Cardozo Law echoed these concerns in a 2018 piece for The Hill

“Precisely because the threat of endless escalation in court packing is now so salient, both parties should recognize the value of cooperating on a long-term solution over securing short-term partisan advantage.” 

Prof. Kermit Roosevelt of Penn Law says that in a time of such political division, fixed terms would bring order: 

“We live now under the system of partisanship and random chance; term limits would take us to the system of order and predictability. It is hard to see any reason why this would not be an improvement, and indeed among experts in the field there is broad and bipartisan consensus in support of term limits.”

And as Prof. Eric Segall of Georgia State Law put it so well and succinctly in a CNN opinion piece: 

“There simply is no persuasive reason to allow governmental officials who have virtually unreviewable power to hold their offices for life.”

Supreme Court Term Limits Would Fix the Confirmation Debacle

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