Supreme Court Term Limits and the Revolving Door Problem
Court-packing—although a favorite proposal among some on the left—remains incredibly unpopular. In a recent poll, 26 percent of voters supported expanding the Supreme Court, including only 20 percent of independents. Court-packing’s odds of getting through Congress are even lower. Immediately after a small number of Democratic lawmakers introduced a bill to expand the Supreme Court from nine to 13 justices, House Speaker Nancy Pelosi (D-Calif.) stated she had “no plans to bring it to the floor.”
That leaves term limits. And although Supreme Court term limits are often more popular than court-packing, it faces significantly more hurdles to implement. Since the Constitution affords federal judges life tenure, term limits would require a constitutional amendment. Legislation that attempted to get around Article III would unlikely gather enough congressional support and would undoubtedly be challenged in court. And since term limits could not apply retroactively, it would take potentially decades for every current justice to retire and have a term-limited justice take their place.
Aside from all that, Supreme Court term limits have a bigger problem. If there is anything voters loathe more than the politicization of independent institutions, it is the “revolving door,” the cycle of public servants leaving government to influence their former colleagues—often making big bucks along the way—only to return to a prominent government position perhaps later.
Supreme Court term limits would create a permanent revolving door for the highest Court. With term limits, justices would often leave the court in their 60s or 70s, several years before many retire and on pace with the age of many sitting politicians at the state and federal levels. This gap between the bench and retirement could create untold future conflicts and uncomfortable perceptions about the Court. If the argument for term limits is to improve the Court’s perception, term limits may perhaps make it worse.
We see it all the time in Congress. A lawmaker retires and doesn’t return home but stays in Washington, working in an industry they used to oversee or represent them as a lobbyist on K Street. Former members of Congress don’t necessarily get these plum jobs because of their advanced knowledge of congressional procedure. They’re hired because of who they know—other lawmakers.
The same gambit exists in law. After their one-year job is up, former Supreme Court law clerks receive healthy bonuses—at times reaching $400,000—to join elite D.C. law firms. These law clerks are bright and talented lawyers, but what unique skills do they offer from other Ivy League graduates who similarly completed federal clerkships? As one political scientist has remarked: “knowing your former boss gives you a leg up.”
An 18-year term affords term-limited justices the chance for a second career after their service. So, what would be the going rate for a former Supreme Court justice? Should she be permitted to argue before the Court? What sort of insight behind closed doors could a former justice offer about his eight colleagues? With Supreme Court term limits, this would be an uncomfortable reality.
This is not meant to condemn the practice outright. People should be compensated for their experience and expertise. A number of lower federal judges routinely leave the bench before retirement age to join large firms or corporations. But the highest levels of government, including the Highest Court of the Land, will fairly receive greater scrutiny.
Let’s consider another alternative career: politics. If judges seek to become judges because they value public service, politics would seem to be a logical next step. Indeed, recent history is rife with former state and federal judges running for office. One hundred years ago, President William Howard Taft became Chief Justice Taft, serving on the Court longer than he served as president. After all, age shouldn’t be an obstacle for a term-limited justice. The last two presidents were in their 70s when they took office.
What could former justices campaign on? Their principled decisions as a jurist? Their willingness to work “across the aisle” with rival justices on the Court? Their frustration sitting on the Court while lawmakers failed to solve pressing policy matters? Like cable news that “switches” from day-time news to evening opinions, the line between lawmaking and judging would quickly blur. The average voter may ask, when did the justice commit to partisan politics? Just now, or while they were sitting on the bench?
Let’s say neither practicing law nor politics is in the cards for a term-limited justice. Fortunately (or unfortunately) there are plenty of other lucrative prospects. Just last week, Justice Amy Coney Barrett inked a $2 million deal to write a book. In the past, several of her colleagues have done the same. Of course, these books typically are autobiographical or concern a general legal philosophy. But perhaps term limits could offer enough time for a good “tell-all.” If a book deal falls through, every cable news program would be thrilled to have an exclusive contract with a former justice. Maybe a former justice could host their own show?
Alexander Hamilton argued that the judiciary was “the weakest” branch because it had “neither force nor will, but merely judgment.” Its strength is based on its legitimacy. Without legitimacy, there would be little pushback when the Court is ignored, collapsing our separation of powers system and the rule of law. As a result, fairly or unfairly, the Court’s perception matters. Term limits, although intended to improve the Court’s perception, has a better chance of cratering it.
Image credit: Orhan Cam