October 22, 2014

Supreme Court Term Limits: Pursuing Apolitical Predictability (Part 1)

Erwin Chemerinsky, Norm Ornstein, Richard Nixon, Supreme Court, Term limits

by Jason Steed, Associate at Bell Nunnally, and president of the Dallas-Ft. Worth Lawyer Chapter

*This is part one of a three part series.

There’s been a lot of talk lately about term limits for Supreme Court justices. Norm Ornstein brought renewed attention to the issue in May. Erwin Chemerinsky has proposed term limits in his new book, The Case Against the Supreme Court. And a recent poll asked about it, and shows nearly 70% of the public thinks term limits are a good idea.

I was invited to write a blog post on this topic because I have a short article forthcoming in the December issue of The Federal Lawyer, which also makes a case for term limits. But unlike Ornstein and Chemerinsky, my primary focus isn’t the politics or ideology of the Court. My focus is on the 1968 presidential election.

In a nutshell, a confluence of circumstances turned the 1968 election into a watershed for the Supreme Court. The newly elected Nixon was suddenly able to appoint four new justices to the Court—in his first term—transforming the progressive Warren Court into the moderately conservative Burger Court, and setting a trajectory (through the appointment of William Rehnquist) for the much more conservative Court that we have today. (You’ll have to read the article when it comes out, to get my full take on the story.)

Yes, this transformation of the Court—politically and ideologically—has been deeply troubling for progressives over the last 40 years. But it would be a mistake, when making an argument for term limits, to spend too much time complaining about the longevity of the Court’s rightward bent. Imposing term limits will require a constitutional amendment, which will require support from both sides. And you can’t get support from both sides if you’re complaining about something that one side really, really likes.

The real problem with what happened during the 1968 election and Nixon’s first term was not the shift toward a more conservative Court, but the suddenness of that shift. In other words, if the ideologies were reversed, and four new appointments caused the Court to swing suddenly from conservative to more liberal, the problem would be the same—because the problem is not the direction of the shift, but its unpredictability.

In 1968, even knowing Nixon would win the election, no one would have predicted that he would get four appointments to the Supreme Court in his first term. And did anyone predict that Carter would get zero? Why should one presidential election have an enormous impact on the Court while another has none? And the new president elected in 2016—who can predict how many appointments she’ll get? It could be as many as four (Ginsburg, Scalia, Kennedy, and Breyer are all old enough to retire)—or it could be none (all four of these justices, health permitting, could stick around through 2020, or even 2024).

Politics are always somewhat unpredictable. There’s no helping that. But some still believe the Supreme Court is supposed to be above politics. The Supreme Court is supposed to be about the law, and we prefer the law to have some predictability. Shouldn’t we therefore prefer some de-politicized predictability in the Court and its composition?

Apolitical predictability: this is the real value that term limits have to offer. And the dissipation of power, of course—limiting the time during which an unelected person can hold and exert power and influence. These should be the primary motives behind a nonpartisan argument for judicial term limits.

In part 2, I’ll take a look at four practical problems that have to be solved, for term limits to be implemented.