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SCOTUS Term Limits and the Final Period Problem

By Tyler Cooper, FTC senior researcher

One objection we’ve heard from a handful of law professors, not to mention a federal judge or two, about placing term limits on the Supreme Court is the concern they have over what may happen to a justice as the end of his or her term approaches.

The critique charges that justices will align themselves with certain commercial or partisan interests to ingratiate themselves with future employers or that a justice may view the end with an eye toward crafting a legacy-setting opinion at the expense of measured jurisprudence. If justices knew each other’s “expiration dates,” we’re told, they’d act less congenially toward one another, since the expectation they’d work with more or less the same handful of individuals for the remainder of their professional careers would disappear.

These concerns necessitate a number of bizarre assumptions about the way the high court operates and the kind of individuals that do and would comprise the body.

As a general matter, all of these concerns assume unethical justices. Though the justices are not bound by the Code of Conduct for U.S. Judges, and there is no Code of Conduct for U.S. Supreme Court Justices, every justice takes an oath to uphold the Constitution, most justices say they “follow” the code, and every lawyer is expected to adhere to something close to, if not specifically, the ABA Model Rules of Professional Conduct, which forbids “conduct that is prejudicial to the administration of justice.”

Massaging judicial opinions to coddle a prospective employer, or overreaching in a matter to goose your own judicial legacy, would seem like clear violations of these rules. If a justice does not feel obligated to clear even this low bar of professional ethics, he or she frankly has no business serving on our nation’s highest court.

Aside from the absurdity of a future justice as corrupt as just considered, the idea of a term-limited justice ruling with an eye toward future employment incorporates another odd idea. In what world would an ex-Supreme Court justice be anything other than eminently employable? All of this discussion also ignores that there is nothing stopping a justice right now from jumping off the court to pursue more lucrative opportunities – of which there are plenty.

The concerns of internal comity on a Supreme Court of term-limited justices also requires imagining justices very unlike those that we are familiar with. Justices Scalia and Ginsburg were often acerbic toward each other’s judicial opinions but “best buddies” (Ginsburg’s words) off the court. Justice Scalia’s take on the matter: “If you can’t disagree ardently with your colleagues about some issues of law and yet personally still be friends, get another job, for Pete’s sake.”

Under the Fix the Court plan for Supreme Court term limits, the most likely future would be that after 18 years, justices would remain in the federal judiciary as senior justices, serving on lower courts, as we have seen SCOTUS justices do before, or returning to the high court temporarily should there be a sudden vacancy due to death.

This would be a boon for circuit courts that have been habitually understaffed in recent years and would provide a cadre of elder statesmen and women who could provide valuable leadership for a judiciary that has recently come under fire for occasionally being seen as falling short of its public mandate.

For these reasons, we see the likelihood a term-limited justice becoming corrupted as far less likely than one who serves 30 or 35 years, which is now the norm.

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