Judicial Term Limits and Judicial Independence

For one last go-round, I’ll respond to a couple of the creative attempts in comments to justify essentially indefensible life tenure for judges. Essentially, all of these arguments are “largely speculative effects that would be trivial even if they existed with no attempt to balance them against the very real and identifiable costs of life tenure.” First, there’s this:

Well, we should also consider that some Supreme Court justices with limited terms would have their eyes on political office after they left the bench.

Do you think, say, Brown v. Board of Education would have been a 9-0 vote if some of those justices were planning to run for the Senate somewhere down the line? Would it have even gone the way it did?

On the specific case of Brown, of course judicial term limits would have made no difference to the outcome. The one justice from the Deep South was perhaps the decision’s strongest supporter. Somehow, I doubt that Robert Jackson was pondering a run for political office from his deathbed, and of course since he was from New York political considerations would have made him less likely to dissent. Term limits would have forced Stanley Reed to leave a whole year earlier than he did — when he was 73. And what’s true specifically is true in general — to believe this is a relevant factor requires as many implausible assumptions piled on top of one another as the ticking time bomb scenario. You would need 1)enough justices to change a vote 2)considering a run for political office although they’re likely pushing or past 70, 3)and for whom political considerations all end up changing rather than reinforcing their vote. And then, of course, any justice who was concerned about political office can just resign anyway (Douglas certainly would have had FDR put him on the ticket, which was apparently considered), so it’s not like life tenure would cause such alleged effects to vanish. Let’s just say it’s a risk I’m willing to take.

Another argument:

In short, you can’t have fixed terms AND staggered terms AND be assured that those terms are long enough to provide the sort of long horizon that tends to ensure judicial independence. You have to pick two of three: 1) fixed terms; 2) staggered terms; 3) judicial independence.

Most of this false choice comes from the idea that a (rare in modern times) case in which a judge resigns or dies on office before 18 years represents some huge problem. Of course, it’s fairly easy to deal with –have a retired justice sit in, the historically common practice of leaving a seat vacant, temporary non-renewable appointments — and at any rate there can be no question that term limits produce a much less arbitrary distribution of appointments than life tenure, so this objection obviously doesn’t fly. The bigger problem is that the false choice assumes that liberal democracies that have fixed, staggered terms (which is to say, most of them) don’t have “judicial independence.” This is really silly. Part of the problem here, perhaps, is a failure to understand that judicial independence is a relative, rather than an absolute, concept. If such marginal effects could mean that we don’t have “judicial independence,” I hate to break this to you, but the United States doesn’t have it. Various aspects of the constitutional system — most notably the fact that courts rely on other actors to implement their decisions, and the ability of Congress to control federal jurisdiction and increase the size of courts — are far, far more of a problem to “judicial independence” than speculative, marginal effects cause by the fact that a few judges might want to start lucrative private sector careers instead of just retiring on their generous pensions at age 71.

Again, if anyone has actual evidence that courts in most other liberal democracies aren’t meaningfully independent in a way that American courts are, please point us to it. Otherwise, it’s pretty clear that the benefits of term limits outweigh the costs.