The Case For Term Limits For Supreme Court Justices

As the Supreme Court concludes the 2013-2014 judicial term, it is hard to overstate the impact that the rulings of the Court have on the lives of so many Americans. This term, amongst other critical questions, the Court found streaming television startup Aereo to be in violation of copyright and broadcast laws, and, in a case with broad-reaching implications for privacy rights, held that during an arrest, law enforcement may not search the contents of a mobile phone without a warrant. In perhaps one of it's most controversial and contested rulings this term. the Court found that certain private, for-profit employers can opt out of providing certain types of health care coverage (such as contraception for women), if such care violates the employer’s stated religious beliefs.

Examining the last several years of cases more broadly, it is clear that the Court’s reach has been just as wide. Amongst it's other rulings, the Court has found crucial portions of the 2010 Affordable Care Act (Obamacare) constitutional, affirmed the permissibility of sectarian public prayer in government meetings, upheld a Michigan ban on affirmative action in college admissions, and struck down the Defense of Marriage Act, which barred federal recognition of gay marriages performed in various states, while allowing for the resumption of same-sex unions in California.

Considering the Court’s role as the nation's ultimate arbiter for questions of law, it is vital that the Court function in as effective, thoughtful, and fair a manner as possible. Towards this end, a Constitutional amendment ought to be adopted, under which, for every current justice who retires from the Court, his or her replacement will only be allowed to serve on the Court for a period of eight years, after which, a new justice will be nominated by the president, and confirmed by the Senate.

This change will reduce the risk of any single judge gaining excessive influence on the court’s rulings, and thus becoming overly powerful. It will also ensure that judges have a heightened degree of familiarity with current societal norms and values, which can lead to better, more responsive decision making. Additionally, while terms of various lengths could be considered, eight years is the ideal time in order to ensure that justices have the expertise needed for this position, and are able to effectively collaborate with other justices on the Court, while also offering appropriate limits on their power.  

Lifetime Supreme Court appointments allow some justices to accumulate excess influence and power

Quite often, Supreme Court decisions are decided by unanimous 9-0 votes (this was the case for 49% of rulings in the 2012-2013 term, as were 52% of rulings from 2009-2011). At the same time, by historical standards, today’s Supreme Court is amongst the most divided in American history. On many of the most contentious issues of today, justices tend to vote with other justices who were appointed by presidents from the same political party. The four justices appointed by Democratic presidents Clinton and Obama (Ginsburg, Breyer, Sotomayor and Kagan), come down on one side of an issue, while four of the five appointed by Republicans (Scalia, Alito, Thomas and Roberts), tend to rule in an opposite manner.  

 Prior to President Obama’s election (after which Justice Sotomayor and Justice Kagan were appointed), various other 4-4 splits often emerged, as liberal-leaning Republican appointees John Paul Stevens and David Souter, tended to vote with Clinton appointees Ginsburg and Breyer, to comprise a liberal wing of the Court, which often faced off against the remaining justices appointed by Republican presidents.

Each of these scenarios leave us with a variable, undecided ninth vote. In recent years, the role of the “swing” justice, who plays the tiebreaking role on some of the most divisive issues before the Court, has been played by Justice Anthony Kennedy, appointed by President Reagan in 1987. At the time of his appointment, Justice Kennedy enjoyed the respect of both liberals and conservatives, and was seen as a relatively noncontroversial choice; as a result, Kennedy was easily confirmed by the US Senate. 

Over time, however, despite leaning to the right in his overall judicial outlook, Justice Kennedy has occasionally broken with conservative orthodoxy, especially on questions of individual rights, and allowed the Court’s left flank to prevail in some high-profile matters. In other instances, Justice Kennedy has provided the decisive vote for rulings that advance the outlook of the Court’s conservative wing.  

In just the last six years, Justice Kennedy has cast the deciding fifth vote between the Court’s liberals and conservatives, responsible for striking down the Defense of Marriage Act, allowing for political spending by corporations and labor unions, upholding the rights of citizens to own firearms for personal self-defense under the Second Amendment, granting terrorism suspects detained at Guantanamo Bay the right to challenge their detentions in American federal courts, permitting religion-specific prayers at city government meetings, barring states from executing defendants who committed violent crimes other than murder, and, most recently, allowing for companies like Hobby Lobby to opt out of covering contraception for female employees.

Statistics further demonstrate Justice Kennedy’s outsized role on the Court; in the 2008-09 term, Justice Kennedy’s vote was in the majority 92% of the time, including in 18 of 23 decisions that were split 5-4. In the 2010-2011 term, Justice Kennedy was in the majority for 14 of the 16 cases that were decided by a 5-4 vote. 

As a result of his pivotal role on a divided Court, parties presenting their cases before the Court , as well as other justices, shape their arguments in a manner that will most effectively influence Justice Kennedy. As Supreme Court observer Dahila Lithwick noted, it often seems that the “…hottest game in Supreme Court brief-writing is to quote Kennedy gratuitously and often. In other words, flattering Kennedy has become something of an art.”

Lithwick further argues that both liberal and conservative Supreme Court justices have sought to ingratiate themselves with Justice Kennedy, in hopes that he might vote with them on a particular case. Other justices often cite to Justice Kennedy’s prior rulings in their own opinions drafts, and Chief Justice Roberts rewards Justice Kennedy with desirable writing assignments, hoping that by allowing Kennedy to closely shape opinions, he will vote with Chief Justice Roberts and the Court’s other conservatives.

Because of the unique role he plays on today’s sharply split Court, despite being just one of nine justices on the court, Justice Kennedy’s particular interpretation of the law will have a disproportionate impact on American jurisprudence, for decades to come. However one might feel about Justice Kennedy’s stance on any particular issue, it is troubling that a single, unelected official, permitted to serve for the remainder of his life, has the final say on some of the most pivotal questions of the day, with his rulings having an impact for decades to come. Functionally, on some of most important and controversial issues of the day, the United States Supreme Court, is, and will continue to remain, the Kennedy Court, with Justice Kennedy’s interpretation holding sway as the law of the land. One person enjoying such singular, largely unrestrained power, is incongruous with the core ideals of a constitutional republic.

Term limits for Supreme Court justices would be an important step towards solving this problem. If each justice on the Court were to serve for a period of just eight years, over time, more presidents, likely of varied ideological persuasions, would enjoy the opportunity to nominate Supreme Court justices. This means that the composition of the Court, from an ideological standpoint, will shift more frequently, and as a result, any individual justice is less likely to be the all-powerful deciding vote on pivotal matters for years on end, as is the case with today’s Court.  

Of course, this analysis presumes that presidents from one party, and even one wing of a political party (i.e. progressive Democrats or Tea Party Republicans) are not consistently elected to office for decades on end. Despite the demographic disadvantages that today’s GOP faces, a broad examination of American history suggests that one party rarely remains in control of the presidency (or Congress) indefinitely. As each party adapts and evolves (or dies out, and makes room for new alternatives), presidents from different ends of the political spectrum will likely be elected. Over time, the Court’s makeup will necessarily shift, reducing the importance and influence of any single judge.

Term limits will result in judges who better understand the broader political and social impact of Court rulings, thus preparing more thoughtful opinions

It is no secret that life expectancies in the United States have increased since1787, when the framers of the Constitution signed this guiding document. The Constitution provided that Supreme Court justices could hold their offices provided “good behavior”, a provision that has come to mean, barring gross misconduct, a justice may serve on the Court for his or her entire life. Today, as compared to the mid 1700's, justices not only live longer, but also serve on the Court for significantly greater periods of time.

Examining the tenures of recent Court retirees, and their counterparts who served on the earliest days of the Court, drives this point home. The first nine justices to serve on the Supreme Court completed an average tenure of just over 9 years, while the nine most recent departures from the Supreme Court served for an average of slightly less than 22 years. Clearly, lifetime appointments have a different meaning today, than from the nation’s earliest days.     

Numerous social, cultural and technological changes have taken place since the longest-serving member of the Court, Justice Antonin Scalia, assumed his seat on the Court in 1986. The threat of terrorism has led to the creation of both a gargantuan national security state at home, as well as an extensive detention system in Guantanamo Bay, Cuba, and the use of military force against American citizens suspected of involvement in terrorist activity. 

On the social and cultural front, gay marriage is now legal in 17 states, and gay relationships are broadly accepted in today’s society. Crime rates have declined at a remarkable rate, though incarceration rates remain the highest in the developed world.

Perhaps one of the most striking differences between 1986 and today is the rise of the Internet, along with numerous groundbreaking advances in both digital connectivity, and major strides in biotechnology. With all of this technological progress comes a number of novel, challenging legal issues, ranging from the nature of cell phone privacy (which the Court just issued a groundbreaking ruling on just last month) to the collection of metadata by the NSA, to questions regarding net neutrality and the issuance of patents for human genes. 

Justice Scalia is no doubt aware of many of these changes; after all, as a member of the Court, he has had to rule on cases concerning some of these questions. However, Justice Scalia, and anyone else who lives and works in the nation’s capital for an extended length of time, and spends the majority of his or her days pondering legal questions, is simply unlikely to have the geographic proximity, and cultural context, to really feel the current pulse of the rest of the nation, which is relevant to reaching an effective understanding of these issues.

If a justice serves on the Court for just eight years, it is highly probable that, prior to his or her Court appointment, he or she lived outside the greater Washington DC area. This future justice might have watched the local news, read regional newspapers, and attended events in the community. Perhaps he or she had a neighbor who was openly gay, or, if a justice has children, they might have attended a school with students from various cultural backgrounds.

His or her life outside the confines of the Court, could, through casual observation, also lead to a deeper understanding of how security procedures, and attitudes around terrorism, security, and personal privacy, have changed since 9/11. A potential justice might also gain some firsthand perspective on how the public uses technology, and how cultural norms around gender roles have shifted over time.

Essentially, since term limits neccesarily dictate that a justice was not serving on the Court until quite recently (and won’t be on the Court for very long), he or she will be in a stronger position (unlike someone with decades on the Court) to effectively understand how Americans of today actually live, and how the questions before the Court are relevant to, and have an impact upon, the nation as a whole. This will help facilitate a more thoughtful and measured approach to judging, as a justice is preparing his or her rulings in a broader, more nuanced context.    

A justice’s rulings can be powerfully shaped not just by observation and proximity to various conditions, but also through personal experience. A recent study found that male judges with daughters were more likely to rule in favor of women’s rights than those who did not have female children; a child’s gender, it seems, colors a judge's view of women's status more broadly. One of the court's most recent appointees, Justice Sonia Sotomayor, herself noted the relevance of life experience for judges, in a (now controversial) 2001 talk, observing that the gender and ethnicity of a judge “can and will make a difference,” and that “personal experiences affect the facts that judges choose to see.”  

Studying the lives of other judges, this becomes a fairly prevalent theme. Judicial scholars have argued that Justice Scalia’s judicial approach was in part shaped by the personality differences between his mother’s and father’s branches of the family, while former Justice Steven’s belief in vigorous dissents when judges disagree with the majority, was a product of a bribery case he was tasked with investigating earlier in his career.

The 2002 case Virginia v. Black provides a powerful example of precisely how a justice’s life experience can shape his thoughts on a case. In this case, the defendants challenged a Virginia law that prohibited the burning of crosses, a traditional practice of the Ku Klux Klan and other white supremacist groups. The Court seemed likely to strike down the law as violating First Amendment free speech protections, as had been done with other laws barring symbolic speech.

However, during oral arguments by lawyers for each position, Justice Clarence Thomas, who was born in a segregated neighborhood in Georgia, inquired as to whether cross burning should actually be understood not just as speech, but rather, within the broader context of lynching and racial terrorism in the United States. Thomas’ inquiry, likely colored by his own personal background, has been seen as instrumental in the Court’s eventual ruling upholding the cross burning ban in Virginia.

It is tempting to argue that justices should decide a case by solely considering facts, existing case law, and relevant public policy arguments, and that a justice's observations and experiences should play no role in the Court's rulings. In a strictly objective world, free of any human bias due to one’s life trajectory, this might be possible. However, that is not the reality we inhabit; essentially, such an argument is demanding that justices defy their own innate psychology and biology.

Recent neuroscience research has demonstrated that throughout life, the human brain can be altered by new knowledge and experiences (this is referred to as neuroplasticity or brain plasticity). Additionally, a decades-long wealth of prior psychological and psychiatric studies has shown that numerous aspects of our current behavior and thinking are the product of prior experiences. Given these scientific realities, demanding that a member of the Court to be immune to the facts of human existence, simply isn’t feasible.

Clearly, the judicial opinions of each justice are shaped in part by his or her life story, that is, by what he or she has witnessed and personally experienced. Since justices are dealing with matters of great relevance for the general public, it is crucial for a justice to have a broad, contemporary, and geographically varied personal history to draw upon. Term limits for justices will help to facilitate this process, which will in turn lead to better decision-making by the Court.    

Why an eight year term?

Why can’t justices serve 12 year terms? Or, on the other end of the spectrum, what is wrong with just two years on the Court? Virtually all strictures governing how long one can lawfully occupy a particular office are somewhat arbitrary, really, the product of longstanding conventions. In this case, a term of eight years is relevant in that a president can only hold office for eight years. Limiting justices to a term of eight years is a symbolic acknowledgment that, just as with the president, members of the Court, collectively, wield considerable power to shape national policy. Thus, just as with occupants of the Oval Office, there is a critical need to place well-defined limits on that power. Term limits of eight years offer constitutional acknowledgment of this political reality.  

However, symbolism on it's own is not a strong enough basis for such a momentous change in policy. One important factor in implementing term limits is whether the length of a term offers justices enough time to learn how to judge effectively in such a high-stakes arena as the US Supreme Court. Virtually every job involves a learning curve, and the Supreme Court is no different.

Since the vast majority Supreme Court justices on today's Court were drawn from the ranks of the federal Court of Appeals judges, justices already have significant experience in considering complex legal issues at the appellate level, and working as part of a panel of judges. So, while some period of adjustment is likely required, eight years will be far more than enough time to get up to speed and serve as an effective justice. A very short term (again, let’s say two years), however, may not accomplish this goal, as justices are forced to leave the bench when they’ve barely settled into their seats, and have actually heard and ruled on very few cases as members of the Court, and thus haven’t had an opportunity to accumulate the expertise that several years on the Court would provide.

Ensuring some degree of stability and continuity is also an important consideration for the Court. If justices were to serve on the Court for just two years, a large number of justices will be serving on the Court in a relatively short period of time. This has the potential to be highly disruptive for the Court, as justices come and go without having the chance to form meaningful relationships and build trust with their colleagues, which can important for reaching well-crafted, effective rulings.

Justices issue rulings by meeting in an initial conference, in which they announce how they intend on voting in a particular case. As the stances of the various justices, and so the final outcome of the case, becomes clear, a justice is assigned to write the majority opinion. Either the Chief Justice, or, if he or she is not in the majority, then the most senior justice, in terms of how long he or she has served on the Court, decides who will write the opinion; a justice can also select himself or herself for this task.

The justice writing the majority opinion will prepare and distribute a draft opinion to the other judges also voting in the majority. Through feedback and consensus, a final ruling will be formulated; justices who agree with the majority ruling (at least in part), can also prepare a concurring opinion, which will typically accept part of the majority’s findings, but add additional arguments or points to consider.

Dissenting opinions are also prepared through discussion and deliberation, by those judges who were not in the majority; concurring opinions are also allowed in connection with a dissent. In some matters, the process of circulating and reaching a ruling on a case is believed to have resulted in a changed outcome for that case; through deliberation and debate, a justice, or particular justices, shifted their stances.

While members of the Court have, over the centuries, offered quite a few vigorous dissenting opinions, this entire process of deciding cases is, in many respects, a collaborative undertaking. In order to function as an effective unit, each justice on the Court must have some degree of familiarity with and confidence in the abilities of their fellow justices; otherwise, it can be challenging for even justices who share similar ideological stances to productively work together.

If justices only served on the Court for two years, then, no matter how superb a justice’s credentials might be, there really isn’t much time for his or her colleagues to build a strong working relationship. As a result, the Court might become increasingly dysfunctional and fractured. Eight year terms can help us avoid this problem, while placing an effective limit on the power of each justice on the Court.

Conclusion

Given the need for a Court which offers relevant, effective judicial guidance, and where no single justice has an unusually powerful voice in rulings that determine the social and political trajectory of the nation, it is clear that term limits for Supreme Court justices are absolutely vital. The changes brought about by term limits will take time to have an impact, but, in order to improve our judicial system, and by extension our nation, the movement for Supreme Court term limits must begin now.