It’s not a crazy idea. But it’s still a bad one.
There are two immediately alarming things about the Supreme Court term limits proposed by Joe Biden and Kamala Harris. One is that it’s transparently being done to overthrow the current majority on a Court that has regularly rebuked the Biden-Harris administration for exceeding its legal powers, in order to substitute more pliable judges who will read executive lawmaking power more broadly. The other is that it appears that Biden and Harris are trying to do this legislatively (which would, in turn, require breaking the Senate filibuster) rather than by constitutional amendment, when it is patently unconstitutional to do so.
But wait! Have they really done either of those things? As critics such as Ramesh Ponnuru, Adam White, and Josh Blackman and partial defenders such as Ilya Somin observe, these two features — applying the limits to the justices already on the Court and doing so legislatively rather than by constitutional amendment — are features of the leading Democratic bill on the topic, but Biden and Harris have yet to release details of their own scheme. That gives them some deniability in signaling the more radical way of doing this to their supporters while allowing them to say later, if there is a lot of blowback, that this is not what they meant.
It’s not really fooling anybody. The Associated Press wrote that Biden “says Congress should pass legislation to establish a system in which the sitting president would appoint a justice every two years to spend 18 years in service on the court.” Supporters such as Ed Kilgore note that it “would be doomed in Congress unless the Senate filibuster is first eliminated” — a concession that it is not designed to be done by amendment.
But what if we consider the concept in its most modest form: that is, the idea that we should amend the Constitution prospectively so that future justices serve staggered 18-year terms?
It’s not a crazy idea. But it’s still a bad one. I’ve noted before the well-known policy arguments for life tenure in fortifying judicial independence and ensuring a high quality of judges. Consider another question: What would the judicial system look like if Supreme Court justices’ terms were capped at 18 years? Such a system could easily create problems of judicial ethics that we do not presently have. Think in terms of incentives.
The justices are, as a rule, gifted lawyers, and they have improved significantly in that regard as the selection of justices has come to focus more on legal intellect and judicial and academic experience, and less on picking politicians. While the justices are very well-compensated by the standards of federal employees and have enjoyed a 40 percent pay raise since 2013, they are still massively underpaid compared to what they could make in private law practice.
The current salary for a justice is $298,500 (the chief justice makes an extra $11,000 a year for his additional duties). That compares with $257,900 for federal appellate court judges and $243,300 for federal district court judges. Sounds good right? But average profits per equity partner at the top 19 law firms in New York range from $2.4 million a year to over $8 million. The head of a Supreme Court practice, as someone like John Roberts would be, will typically make a good deal more than the average equity partner at his firm.
Now, consider what kind of money Roberts could make as a former Chief Justice.
The current deal for the justices is an attractive one. They get life tenure, total job security, power, and prestige in exchange for the money they miss out on making — plus they can recoup some of that money through writing books, giving speeches, and enjoying perks such as paid-for travel. As a result, no justice since the 1960s has quit to do anything but retire other than Abe Fortas (who resigned in disgrace), Sandra Day O’Connor (who quit to care for an ailing spouse) and Warren Burger (who wanted to take a valedictory lap chairing a commission on the bicentennial of the Constitution). And both O’Connor and Burger were almost ready to retire anyway. Few federal appeals judges retire early either, with rare exceptions such as J. Michael Luttig (who left the Fourth Circuit to become the highly compensated general counsel of Boeing) and Michael McConnell (who left the Tenth Circuit to return to academia).
But if the justices go in knowing they can serve 18 years and may well be leaving the bench before they are ready for retirement, the whole incentive structure changes. It becomes much more enticing to line up employment after the Court in which the justices can really cash in. That’s exactly the revolving-door dynamic we see so much of elsewhere in the government, where members of Congress and executive-branch appointees make policy with one eye on where they will land in a lobbying gig or with a defense contractor or some other benefactor. Justices who are thinking about who will employ them next are a much larger potential ethical threat than anything we’ve seen in recent decades.
There’s also the risk that we might again see justices decide to use the job as a platform to run for public office. It’s happened before. Justice Charles Evans Hughes quit the Court in 1916 to run for president. Justice John McLean was angling for the Republican nomination when the Court took the Dred Scott case, and his ambition to write a stinging anti-slavery dissent seems to have helped push Chief Justice Roger Taney to issue a more sweeping pro-slavery majority opinion. Having justices playing to the cheap seats from the bench is likely to make the Court less collegial, less functional, and less concerned with the law.
Today, once confirmed, the justices exist at some distance from politicians. That distance isn’t an impermeable wall, because the justices are human, you don’t get onto the Court in the first place without knowing people in politics, and the social circles of living in D.C. as a high public official are what they are. But while it was once common for justices to speak freely with presidents and senators, the norms against that have grown significantly in the past half-century. Justices who plan to seek elected office after the bench — like state judges in states where they must seek reelection — will inevitably have to lower those barriers. And they’ll need to raise money.
As much as the Biden-Harris plan is born of rank partisan and ideological opportunism, there are well-meaning people who argue that a purely prospective shift to term limits and regular appointments would be a good idea. They aren’t thinking through what sort of Court they would create on the ashes of the one we’ve had for 235 years.