Designing Supreme Court Term Limits

66 Pages Posted: 23 Feb 2021 Last revised: 10 Mar 2021

See all articles by Adam Chilton

Adam Chilton

University of Chicago - Law School

Daniel Epps

Washington University in St. Louis - School of Law

Kyle Rozema

Washington University in St. Louis - School of Law

Maya Sen

Harvard University - Harvard Kennedy School (HKS)

Date Written: February 25, 2021

Abstract

Since the Founding, Supreme Court justices have enjoyed life tenure. This helps insulate the justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointment process, a number of academics and policymakers have put forward detailed term limits proposals. However, many of these proposals have been silent on many key design decisions and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term limits proposal and develops an empirical strategy to assess the effects of instituting term limits. The framework we introduce outlines the key design features that any term limits proposal must make, including frequently overlooked decisions like what the default would be if there is Senate inaction on a president’s nominee. The empirical strategy we develop uses simulations to assess how term limits proposals would have shaped the Court if they had been in place over the last 80 years of American history. These simulations enable comparative assessments of term limit proposals relative to each other and to the historical status quo of life tenure.

Using these simulations, we are able to isolate the design features of existing proposals that produce significant differences in the composition of the Supreme Court. For instance, proposals that commence appointing term-limited justices immediately could complete the transition in just 16 years, but proposals that wait until after the sitting justices leave the Court to appoint term limited justices would take an average of 52 years to complete the transition. Our results also reveal that term limits are likely to produce dramatic changes in the ideological composition of the Court. Most significantly, the Supreme Court had extreme ideological imbalance for 60 percent of the time since President Franklin Roosevelt’s effort to pack the Court, but any of the major term limit proposals would have reduced the amount of time with extreme imbalance by almost half.

Keywords: supreme court, empirical, term limits, simulations

JEL Classification: K40

Suggested Citation

Chilton, Adam and Epps, Daniel and Rozema, Kyle and Sen, Maya, Designing Supreme Court Term Limits (February 25, 2021). Southern California Law Review, Forthcoming, Washington University in St. Louis Legal Studies Research Paper, Forthcoming, HKS Working Paper, Forthcoming, U of Chicago, Public Law Working Paper No. 763 , Available at SSRN: https://ssrn.com/abstract=3788497 or http://dx.doi.org/10.2139/ssrn.3788497

Adam Chilton

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

HOME PAGE: http://www.adamchilton.org

Daniel Epps (Contact Author)

Washington University in St. Louis - School of Law ( email )

Anheuser-Busch Hall 573
1 Brookings Drive, Campus Box 1120
St. Louis, MO 63130
United States
(314) 935-3532 (Phone)

HOME PAGE: http://https://law.wustl.edu/faculty-staff-directory/profile/daniel-epps/

Kyle Rozema

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

Maya Sen

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

HOME PAGE: http://scholar.harvard.edu/msen

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
517
Abstract Views
2,516
rank
65,148
PlumX Metrics