October 24, 2014

Supreme Court Term Limits: Pursuing Apolitical Predictability (Part 3)


constitutional amendment, judicial nominations, Richard Nixon, Supreme Court, Term limits

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

*This is the final post of a three-part series.

In part 1, I suggested that predictability is the real value that term limits have to offer, and that this ought to be the focus in nonpartisan arguments for judicial term limits. And in part 2, I tried to briefly address some of the practical problems that must be solved before term limits can be imposed. In this post I want to have a little fun thinking about what term limits might look like in real life.

In part 1 I mentioned the circumstances surrounding the 1968 election, which led to Nixon making four appointments to the Supreme Court in a single term. Let’s imagine that the public’s reaction to this revolution in the Court’s composition produced (quickly!) a constitutional amendment to impose the 18-year term limits we’ve been talking about. And let’s imagine that the only way the Republicans would go along with this, in 1972, was if everything could go into effect immediately—so that Nixon, who was a shoo-in for reelection (beating George McGovern 49 states to 1), could be assured the opportunity to appoint two more Supreme Court justices before leaving office. (Of course, no one would know at the time that Nixon would be forced to resign in 1974.)

What would the Court look like today, if this happened?

Using the system outlined in my last post, I’ve created an alternate history of the Supreme Court. Assuming everything stays the same with presidential elections, and assuming all the justices who have been appointed to the Court still would have been appointed in the alternate history (though perhaps at a different time), I’ve charted a side-by-side comparison of what really happened on the Court from 1968–2016 (left column) and what might have happened if 18‑year terms limits had been imposed at the end of Nixon’s first term (right column):  

 

1968

Warren (CJ)

Black

Douglas

Harlan

Brennan

Stewart

White

Fortas

Marshall

1968

Warren (CJ)

Black

Douglas

Harlan

Brennan

Stewart

White

Fortas

Marshall

Nixon I

(1969-1972)

Warren Burger (CJ)

Black Powell

Douglas

Harlan Rehnquist

Brennan

Stewart

White

Fortas Blackmun

Marshall

Nixon I

(1969-1972)

 

 

 

Warren Burger (CJ)

Black Powell

Douglas

Harlan Rehnquist

Brennan

Stewart

White

Fortas Blackmun

Marshall

 

What really happened, with no term limits imposed:

 

 

What might have happened, with

term limits imposed:

 

Nixon II /Ford

(1973-1976)

Burger (CJ)

Douglas Stevens

Brennan

Stewart

White

Marshall

Blackmun

Powell

Rehnquist

Nixon II /Ford

(1973-1976)

Douglas [Rep.Appt.1]

Brennan Stevens

Stewart

White

Marshall

Burger

Blackmun

Powell

Rehnquist

Carter

(1977-1980)

Burger (CJ)

Brennan

Stewart

White

Marshall

Blackmun

Powell

Rehnquist

Stevens

Carter

(1977-1980)

Stewart [Dem.Appt.1]

White [Dem.Appt.2]

Marshall

Burger

Blackmun

Powell

Rehnquist

Stevens

[Rep.Appt.1]

Reagan I

(1981-1984)

Burger (CJ)

Brennan

Stewart O’Connor

White

Marshall

Blackmun

Powell

Rehnquist

Stevens

Reagan I

(1981-1984)

Marshall O’Connor

Burger Scalia

Blackmun

Powell

Rehnquist

Stevens

[Rep.Appt.1]

[Dem.Appt.1]

[Dem.Appt.2]

Reagan II

(1985-1988)

Burger (CJ) Scalia

Brennan

White

Marshall

Blackmun

Powell Kennedy

Rehnquist (CJ)

Stevens

O’Connor

Reagan II

(1985-1988)

Blackmun Kennedy

Powell [Rep.Appt.2]

Rehnquist

Stevens

[Rep.Appt.1]

[Dem.Appt.1]

[Dem.Appt.2]

O’Connor

Scalia

GHWBush

(1989-1992)

Rehnquist (CJ)

Brennan Souter

White

Marshall Thomas

Blackmun

Stevens

O’Connor

Scalia

Kennedy

GHWBush

(1989-1992)

Rehnquist Souter

Stevens Thomas

[Rep.Appt.1]

[Dem.Appt.1]

[Dem.Appt.2]

O’Connor

Scalia

Kennedy

[Rep.Appt.2]

Clinton I

(1993-1996)

Rehnquist (CJ)

White Ginsburg

Blackmun Breyer

Stevens

O’Connor

Scalia

Kennedy

Souter

Thomas

Clinton I

(1993-1996)

[Rep.Appt.1] Ginsburg

[Dem.Appt.1] Breyer

[Dem.Appt 2]

O’Connor

Scalia

Kennedy

[Rep.Appt.2]

Souter

Thomas

Clinton II

(1997-2000)

Rehnquist (CJ)

Stevens

O’Connor

Scalia

Kennedy

Souter

Thomas

Ginsburg

Breyer

Clinton II

(1997-2000)

[Dem.Appt.2] [Dem.Appt.3]

O’Connor [Dem.Appt.4]

Scalia

Kennedy

[Rep.Appt.2]

Souter

Thomas

Ginsburg

Breyer

GWBush I

(2001-2004)

Rehnquist (CJ)

Stevens

O’Connor

Scalia

Kennedy

Souter

Thomas

Ginsburg

Breyer

GWBush I

(2001-2004)

Scalia Roberts

Kennedy Alito

[Rep.Appt.2]

Souter

Thomas

Ginsburg

Breyer

[Dem.Appt.3]

[Dem.Appt.4]

GWBush II

(2005-2008)

Rehnquist (CJ) Roberts

Stevens

O’Connor Alito

Scalia

Kennedy

Souter

Thomas

Ginsburg

Breyer

GWBush II

(2005-2008)

[Rep.Appt.2] [Rep.Appt.3]

Souter [Rep.Appt.4]

Thomas

Ginsburg

Breyer

[Dem.Appt.3]

[Dem.Appt.4]

Roberts

Alito

Obama I

(2009-2012)

Roberts (CJ)

Stevens Kagan

Scalia

Kennedy

Souter Sotomayor

Thomas

Ginsburg

Breyer

Alito

Obama I

(2009-2012)

Thomas Sotomayor

Ginsburg Kagan

Breyer

[Dem.Appt.3]

[Dem.Appt.4]

Roberts

Alito

[Rep.Appt.3]

[Rep.Appt.4]

Obama II

(2013-2016)

 

Roberts (CJ)

Scalia

Kennedy

Thomas

Ginsburg

Breyer

Alito

Sotomayor

Kagan

Obama II

(2013-2016)

Breyer [Dem.Appt.5]

[Dem.Appt.3] [Dem.Appt.6]

[Dem.Appt.4]

Roberts

Alito

[Rep.Appt.3]

[Rep.Appt.4]

Sotomayor

Kagan

         

 

I’m offering this up without much comment. It’s just for fun. But I will point out, in conclusion, that this imagined alternate history suggests that implementing term limits 40 years ago would not have had a radical impact on the Court’s ideological bent. Today the Court has a fairly reliable 5-4 conservative majority; in the alternate history laid out above, the Court would have a 5-4 Dem-appointed majority, which we can presume equates to a fairly reliable 5-4 liberal majority. That’s not a big change—and in fact the shift only makes sense, given that the alternative history gives Carter two appointments that he never got in reality.

This hypothetical outcome—showing that term limits wouldn’t have had much impact on the Court’s ideology over the past 40 years—is another reason that arguments for term limits shouldn’t be based too heavily on ideological concerns or biases. Term limits won’t help to push the Court in one ideological direction or another. Instead, they’ll help to equalize the impact of every presidential election; they’ll help to dissipate power; and they’ll help to de-politicize the appointment process by injecting it with a heavy dose of regularity and predictability.

That all sounds pretty good to me.