The Right Coast

April 10, 2005
More on Term Limits for Supreme Court Justices
By Gail Heriot

Like Mike, I have a certain sympathy for Calabresi & Lindgren’s proposal in the WSJ for a Constitutional amendment limiting Supreme Court justices to terms of eighteen years. (Also see Jim Lindgren's further commentary on Volokh.)

I don’t think that the issue is easy (and I don't suppose anyone does). One interesting difficulty is the potential for creating conflicts of interests. Will a justice who knows that he will be out of a job soon allow his decisions to be influenced (consciously or unconsciously) by what he thinks might please potential future employers? Calabresi & Lindgren attempt to deal with this problem in several ways: (1) by making the terms non-renewable, thus eliminating the incentive to kowtow specifically to the President and the Senate in hopes of a second term; (2) by providing for a fixed guaranteed salary for life, thus eliminating the need for Supreme Court justices to find a job to put food on the table; and (3) by continuing the practice whereby retired justices are entitled to sit by designation on lower courts, thus providing an outlet for retiring justices’energies.

That surely goes a long way towards reducing the problem, but I don’t think it eliminates it. Only ambitious people get appointed to the Supreme Court. Many (though probably not all) at some point in their legal career have a Supreme Court appointment specifically in mind and try to position themselves to maximize their chances for the job. (They’re not alone in this, though unlike thousands of others, their efforts turned out not to be in vain.) Such habits die hard. A Supreme Court justice, used to being a celebrity, is unlikely to be happy sipping margaritas at the beach or even sitting as a lower court judge. More likely, many will set their sights on interesting or prestigious post-retirement jobs like Harvard University President, United States Senator, Baseball Commissioner, United States President, Wall Street law firm partner, New York Stock Exchange Chairman, etc. I cannot imagine that this would not have some effect–perhaps even an unhealty effect on their conduct. And as healthy life spans continue to lengthen over the course of the 21st century, the problem is likely to be magnified.

Of course, the range of plum retirement jobs that might appeal to a Supreme Court justice is wide enough that the biases created may not be systematic. One justice may lean a bit to far to please academia in hopes of snagging a major university presidency, another may try to please the average voter in Texas in order to run for the Senate there. A third may too attentive to what he perceives to be agricultural interests in hopes of being appointed Secretary of Agriculture. Ambition may thus in effect be made to counteract ambition. No particular interest is made significantly stronger.

Is the overall effect likely to be so small that it is outweighed by the benefits of term limits? I'm inclined to think so. On the other hand, if you disagree, there is still time to talk sense to me ....