[SCOTUS Blog] The risks of Supreme Court term limits

I know there has been some discussion of this question from time to time, for example in the Kennedy retirement thread last summer:

Suzanna Sherry has an interesting post on the SCOTUS blog this afternoon about running simulations of Supreme Court decisions on the model of full replacement of the Court every 18 years.

Here's her setup:

Should we impose term limits on Supreme Court justices? Many people, of varying political views, have suggested that we should. They argue that requiring justices to step down after a fixed term – the most common suggestion is 18 years – would give all presidents an equal opportunity to nominate justices, depoliticize the confirmation process and ensure that the Supreme Court is never too far out of step with the views of the American public.

Whether adopting term limits would accomplish all of these goals is, of course, disputed. But is there any reason not to try it? In “Term Limits and Turmoil: Roe v. Wade’s Whiplash,” forthcoming in the Texas Law Review, we argue that there is a very serious potential downside to limiting justices to 18-year terms. A Supreme Court that welcomes a new justice every two years, and turns over entirely over the course of every 18 years, could wreak havoc on doctrinal stability. Under the current constitutionally mandated system of life tenure, the court changes slowly. Most justices serve at least 20 years and many serve 30 years or more; no new justices joined the court at all between 1994 and 2005. This longevity and stability means that doctrine changes slowly and incrementally. A constantly changing court, on the other hand, might make sudden and radical changes in doctrine.

But is this a realistic fear? Our article tries to assess just how much instability an 18-year term limit would cause. We use a computer simulation to model what is likely to have happened to abortion rights after 1973 (when Roe v. Wade was decided) if term limits had been in place from then until now.​

She goes on to explain the "four things that most scholars believe influence judicial decision-making" are "the party of the nominating president, the party composition of the confirming Senate, the individual justice’s likelihood of voting in line with the nominating president’s ideology ('loyalty') and the individual justice’s level of deference to precedent."

After running computer simulations with each of these four variables at low, medium, and high values, they explain what they found as regards Roe v Wade as a case illustration:

And what did we find? Roe suffered whiplash. Positing moderately loyal justices with no deference to precedent, Roe would have been overruled in 1987, reinstated in 2009 and overruled again in 2017. . . .

Changing the loyalty level did not change the net number of reversals, although it did change the probabilities: Positing more loyal justices made the two overrulings and one reinstatement more probable, and positing less loyal justices made them less probable but still more likely than not.

Adding deference to precedent ameliorated some of the instability, but assuming that justices will uphold precedent is inconsistent with the primary justifications for imposing term limits. The point of term limits is to give presidents an equal chance to influence the Supreme Court and to keep the court’s views in line with a majority of Americans; those goals can only be accomplished if justices are not hesitant to overrule existing precedent. Precedent thus may bring doctrinal stability, but at the potential cost of the very democratic responsiveness that makes term limits appealing to many proponents. In addition, deference to precedent is always lower in constitutional cases because Congress cannot override constitutional decisions. Finally, studies suggest that lower courts – the final arbiters in most cases – are more likely to defy Supreme Court precedent if the current court is ideologically distinct from the precedent-creating court, even if the Supreme Court itself is unlikely to overrule the precedent. For these reasons, we think that the no-deference models that predict three swings of precedent in 46 years are the most plausible.
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Ultimately they conclude that limiting terms for Supreme Court Justices would likely have a destabilizing effect on American jurisprudence, which they argue would be a bad thing.

Hence their advice to tread carefully in the discussions about term limits for Justices:

In the end, then, term limits are likely to have a substantial detrimental effect on doctrinal stability. A case could go from being a sure winner to a sure loser over the course of a single election. And that doctrinal instability would likely alter the nature of jurisprudential evolution and change the focus of litigants, policy makers and lower-court judges from doctrine to the court’s composition, further politicizing the court. Although there may be good arguments for term limits, we should think long and hard about these dangers before considering such a major change to our judicial system.
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Recommended Citation:
Suzanna Sherry and Christopher Sundby, Academic highlight: The risks of Supreme Court term limits, SCOTUSblog (Apr. 5, 2019, 1:29 PM), https://www.scotusblog.com/2019/04/academic-highlight-the-risks-of-supreme-court-term-limits/

 

perhaps you missed their punchline: "And what did we find? Roe suffered whiplash. Positing moderately loyal justices with no deference to precedent, Roewould have been overruled in 1987, reinstated in 2009 and overruled again in 2017. . . ."

 

thanks for the vote of confidence

this piece is just a précis of the longer article in the Texas Law Review. You can download the whole thing I believe at the link she provides

I wasn't aware this last line was an issue

 

Supreme Court term limits are popular — and appear to be going nowhere

https://www.washingtonpost.com/nation/2021/12/28/supreme-court-term-limits/

excerpt:

The term limits question is complicated not just by the debate over its merits, but how it would be implemented. Legal scholars and members of Biden’s commission were split on whether such a change would need a constitutional amendment, which would require the support of two-thirds of the House and the Senate, as well as three-fourths of state legislatures.

Laurence Tribe, the longtime constitutional law expert at Harvard University and a member of Biden’s Supreme Court commission, said he went into the panel’s work thinking that he supported term limits but changed his mind “because of the complexity and the enormous time period it would take to implement a term limits proposal.”

Though Tribe said he thinks life tenure for justices is “dramatically incompatible” with a government designed not to afford lifetime power to individuals, he said any federal law that tries to impose term limits would face constitutional challenges and would likely be struck down.

“The actual idea of trying to make it work is nightmarish,” Tribe said.
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more at the link. glad to see Larry still has some synapses firing

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