Posted by Randy Barnett:
Term Limiting Supreme Court Justices:
Lately I was asked to endorse the following proposal by law professors
Paul D. Carrington and Roger C. Cramton to limit the terms of Supreme
Court Justices:
THE SUPREME COURT RENEWAL ACT OF 2005
Congress should enact the following as section 1 of Title 28 of the
United States Code:
(a) The Supreme Court shall be a Court of nine Justices, one of
whom shall be appointed as Chief Justice, and any six of whom shall
constitute a quorum.
(b) One Justice or Chief Justice, and only one, shall be appointed
during each term of Congress, unless during that term an
appointment is required by Subsection (c). If an appointment under
this Subsection results in the availability of more than nine
Justices, the nine who are junior in commission shall sit regularly
on the Court. Justices who are not among the nine junior in
commission shall become Senior Justices who shall participate in
the Court's authority to adopt procedural rules and perform
judicial duties in their respective circuits or as otherwise
designated by the Chief Justice.
(c) If a vacancy occurs among the nine sitting Justices, the Chief
Justice shall fill any temporary vacancy by recalling Senior
Justices in reverse order of seniority. If no Senior Justice is
available, a new Justice or Chief Justice shall be appointed and
considered as the Justice required to be appointed during that term
of Congress. If more than one such vacancy arises, any additional
appointment will be considered as the Justice required to be
appointed during the next term of Congress for which no appointment
has yet been made.
(d) If recusal or temporary disability prevents a sitting Justice
from participating in a case being heard on the merits, the Chief
Justice shall recall Senior Justices in reverse order of seniority
to provide a nine-member Court in any such case.
(e) Justices sitting on the Court at the time of this enactment
shall be permitted to sit regularly on the Court until their
retirement, death, removal or voluntary acceptance of status as a
Senior Justice.
As explain by its authors, this proposal would have the effect of
limiting the term of "active" justices to approximately 18 years:
The result is that all Justices appointed to the Court in the
future would serve as the nine deliberating and deciding members
for a period of about eighteen years (depending upon the interval
between the initial appointment and the promptness of the
appointment process eighteen years later). However, the Act does
not restrict the lifetime tenure of the Article III judges
appointed as a Justice or Chief Justice of the Supreme Court.
Instead, it defines the regular membership of the Court as
consisting of the nine most recently appointed Justices. Some of
the Senior Justices who no longer participate regularly in the
Court's decisional work may be called upon to provide a nine-member
Court when that is necessary (see Subsection (d)). And all of them
continue to retain the title of "Justice of the Supreme Court" and
to exercise the judicial power of the United States as judges of a
circuit court, a district court, or some other Article III court.
In short, the Act defines the "office" of a Supreme Court "judge"
in a new way. This feature distinguishes the Act from statutory
proposals to place age limits or fixed terms of service on Supreme
Court Justices. Senior Justices will continue to have lifetime
tenure as Article III judges in accordance with the "good behavior"
clause of Section 3 of Article III.
This proposal has already been endorsed by law professors representing
a wide political spectrum. They include: Vickram D. Amar, Jack M.
Balkin, Steven G. Calabresi, Walter E. Dellinger III, Richard A.
Epstein, John H. Garvey, Lino A. Graglia, Michael Heise, Yale Kamisar,
and Sanford Levinson.
I tend to favor term limits--what the Founders called "rotation in
office"--for elected officials, but this proposal gave me pause. I am
not as unhappy with the current system as some on the left and right.
Yet, this proposal seems to have some merits in that it regularizes
the process of adding new members to the court. (I cannot find the
actual proposal on line so you can read the justifications offered by
its authors, but you can read a New York Times story on the proposal
[1]here. If someone finds a link to the full proposal, I will add it
here.)
So far, I have not signed on, but was curious to hear thoughtful
reader reaction. So I have activated comments. I am particularly
interested in hearing potential problems with the proposal, as its
purported benefits are more obvious. However, feel free to voice your
support as well as opposition. But reasons will be more persuasive to
me than expressed preferences.
References
1. http://faculty.smu.edu/jkobylka/SCtItems/term%20limits.htm
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