Document Type

Book Chapter

Book Authors/Editors

Roger C. Cramton & Paul D. Carrington

Publisher

Carolina Academic Press

Publication Date

2006

Abstract

Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.

One of the main arguments for term limits is, in essence, that the Supreme Court should follow the election returns. There is something to be said for the general notion, but it does not follow that each President should have the same number of appointments to the Court. The argument fails to take account of the numerous other circumstances that affect the relationship between the direction of public opinion in the country and the direction of the Court’s decisions.

Assessing how a system of 18-year staggered terms would play out inevitably requires some speculation, but I see three areas of concern.

The first involves the appointment and confirmation of Supreme Court Justices. Although advocates of 18-year staggered terms argue that their plan would reduce the politicization of the confirmation process, I believe the reverse is true. I think the scheme would lead to a permanent war over Supreme Court appointments, akin to the “permanent campaign” and indeed perhaps part of it.

Second, there is the likely effect on the selection (and de-selection) of cases. Under the 18-year term plan, each Justice will know exactly how long his ideological allies (and adversaries) will be staying on the Court. That would provide a powerful incentive to decide controversial issues while a sympathetic majority is in place — or to defer them until a hostile majority is gone. The result will be to distort the process of selecting cases and perhaps also the process of choosing among broad or narrow grounds for decision.

The final area of concern involves the stability of Supreme Court precedent. Admittedly, stare decisis does not seem to carry enormous weight with the current Court. But I think it would get even less respect on a Court whose membership was changing every two years, particularly when one purpose of the new system is to allow the incumbent President to put his—and his party’s—stamp on the Court.

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