Retiring Life Tenure: On Term Limits and Regular Appointments at the Supreme Court

Abstract

The notorious gridlock between Congress and the Executive—and often between houses of Congress—this century has created a power vacuum the U.S. Supreme Court has been more than happy to fill. On race, guns, healthcare, marriage, campaign finance, school choice, religious liberty, abortion, voting, and immigration, lawmakers sit paralyzed as the unaccountable third branch decides for 330 million of us what the law is on each of these issues. What’s worse, the Justices of the Supreme Court are serving longer on average than ever before, nearly twice as long as they served just two generations ago. In short, the politicians in robes wield too much power, and they wield that power for too long. Limiting a Justice’s tenure on the High Court to a more reasonable length would address these problems head on. Future Justices serving a nonrenewable eighteen-year term, as the most common proposal dictates, would decrease the amount of power that any one Justice would hold over American jurisprudence. It would lower the political consequences of any one judicial confirmation battle by ensuring that another chance at a nomination would soon come. And it would ensure that no particular nominee would hold his or her seat for decades, with no end in sight. The current system incentivizes several objectionable practices—ignoring economists’ calls for government stimulus in favor of a confirmation; exposing one’s fellow senators to a deadly disease; finding a nominee as young as possible who could serve forty or fifty years—that we can’t stop right now. But these do make it clear that the system of appointing Justices is in dire need of fixing.