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.
Who were these historic short-termers, and where have their heirs gone? Surely you remember Benjamin Curtis, Sherman Minton, and Thomas Johnson. This last character was on the court for only 14 months — the shortest term in history — and he resigned, Crowe and Karpowitz write, “upon learning that Chief Justice Jay would not rotate circuit assignments, thereby dooming Johnson to toil in the extreme southern heat.”
Such a scenario is obviously unlikely to happen in the modern era of air conditioning. John Jay also left the court for reasons that are hard to imagine recurring today: He was elected governor of New York (Governor Sonia Sotomayor, anyone?). In fact, just about all of the explanations Crowe and Karpowitz list seem quaint in 2012.
By their count, the short-termers left for four primary reasons: scandal, illness or death, boredom or political ambition. Almost all of these seem obsolete today (except, try as critics might, for scandal).
“We’re unlikely to see the return of people who serve on the court for four years,” Crowe said, “because they get tuberculosis and die.”
It’s also highly unlikely on today’s court that we’d see anyone professing boredom, or itching to run for office.
Crowe is not convinced, though, that the extinction of the short-term justice is final. Perhaps this is just a phase. Maybe we’ll go back to seeing more Sherman Mintons (we came so close with Harriet Miers!). We may have cured tuberculosis and court boredom. But there’s no reason we couldn’t once again see justices who retire early simply because they have other things they’d like to do.
Today’s justices without political ambition (or really any ambition outside the courtroom) reflect identical backgrounds in Ivy League law schools and Circuit Court benches. A more relevant criticism about the court today is not that justices serve too long — and grow out of touch over time — but that they’re out of touch in some ways to start with.
The Citizens United campaign finance decision, for example, was decided by a court without a single justice holding any experience in how elections actually work (to borrow a gripe from John McCain). And this was a common refrain during the health care oral arguments: Does Justice Scalia really not know the difference between broccoli and health care?
Holding him to a term limit (the most popular model would set it at 18 years) would not change that. Complaints about the justices’ long tenures and homogenous backgrounds are often intertwined. But we might do something about the former simply by addressing the latter in the appointment process.
Crowe isn’t convinced of the other arguments for instituting term limits, even if the premise weren’t based on the faulty notion that justices are now sticking around far longer than ever. Advocates of the idea predict we’d have less politically nasty confirmation battles if they occurred more often (or would we just be embroiled in an eternally nasty political spat?). And they say term limits would prevent the bench from filling up with lifers who‘d represent the “dead hand of the past.” Do we really want, they ask, Bush and Obama appointees making decisions from the bench in 2030? Surely our national politics will have evolved by then (at least, partisans of both ends of the political spectrum hope so).
History offers us one other lesson about these periodic cries for Supreme Court reform: they blow over. Should the Supreme Court uphold the Affordable Care Act, Crowe suspects this round eventually will, too. He adds, channeling legal scholar Robert McCloskey, that the court in fact seldom lags too far behind, or forges too far ahead of the American people.
“It blows over in part because it’s hard to sustain a long period of going against democratic majorities,” Crowe said. This was true even during the 1930s, when judges largely appointed before the Great Depression were tasked with reviewing legislation created to address it. “Ultimately, the court falls in line, the court does what democracy wants. And the court realized the American people wanted the New Deal.
“Empirical work shows that to the extent the court does represent the so-called ‘dead hand of the past,’ that the court is tied to older ways of thinking rather than new ones, that effect only lasts for a relatively short period of time. Because change does happen; new justices do come on the court.”