Designing Supreme Court Term Limits
95 Southern California Law Review 1 (2021)
Washington University in St. Louis Legal Studies Research Paper, Forthcoming
HKS Working Paper, Forthcoming
72 Pages Posted: 23 Feb 2021 Last revised: 9 May 2022
Date Written: October 1, 2021
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: Suggested Citation