Rejecting Term Limits for the Supreme Court - Miller-McCune
Political scientists studying the U.S. Supreme Court say the problem isn’t how long justices serve overall but that there’s no short-termers in the mix.
Today’s U.S. Supreme Court justices, critics cry, are serving longer than ever (darned improved life expectancy!). And because these people just won’t go away, the court risks becoming an institution where ideological swings have long-lasting impact (or damage), and where present decisions are made by justices grounded in the past.
So legal scholars and amateur court watchers are at it again, agitating for the end of life terms on the nation’s highest court.
One oft-quoted and particularly alarming statistic, from Northwestern’s Steven Calabresi and James Lindgren, shows that average tenure by Supreme Court justices has more than doubled since 1970, relative to the preceding two centuries of court history.
This impression, however, is a bit misleading, and we may not want to hang permanent change on it. Justin Crowe and Chris Karpowitz questioned this in a 2007 study that has renewed relevance today. Until George W. Bush appointed Chief Justice John Roberts in 2005, the court had gone 11 years without a single vacancy. And this, too, prompted a flurry of calls for term limits.
“When there’s not a lot of turnover, people get a little antsy for a variety of reasons,” said Crowe, who is now an assistant professor of political science at Williams College. And people then give a variety of arguments for why term limits would now be a good idea. “But a lot of them are based on what Chris and I have found in this article to be a flawed quantitative measure. They keep coming back to people serving longer and longer tenures. It’s mildly true, but not true to the same extent they want it to be true.”
What’s so unusual about these last four decades, Crowe and Karpowitz counter, is not that long-serving justices have been refusing to retire; it’s that short-term justices have gone practically extinct.
We seldom think about these characters in court history. By definition they didn’t last long enough to leave much impression. But they’ve played a significant role in dragging down average tenures on the court throughout history — and the fact that they no longer exist skews our perception of what’s going on with the court today.
Crowe and Karpowitz define short-termers as those justices who served less than eight years, or two presidential terms. Before 1970, one in every three justices was a short-termer. Since then, the court hasn’t had a single one (although recent appointees Roberts, Samuel Alito, Sonia Sotomayor, or Elena Kagan could bail in time to make the cut).
Put another way: The U.S. is (easily) in the midst the longest period, 42 years and counting, it’s seen without a short-term justice.