REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES

Vol. 16 No.5 (May, 2006), pp.361-363

REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, by Roger C. Cramton and Paul D. Carrington (eds). Durham, NC: Carolina Academic Press, 2006. 516pp. Paper. $45.00. ISBN: 1-59460-213-1

Reviewed by Chris W. Bonneau, Department of Political Science, University of Pittsburgh. E-Mail: cwb7 [at] pitt.edu

This is an impressive edited volume that considers two interesting and important questions. First, should Supreme Court Justices serve a life term, or should their term of office be modified to a single, fixed 18-year term of office? Second, can this change be accomplished by a statute, or is a constitutional amendment necessary? The contributors to this volume (the vast majority of whom are law professors) generally take one of three positions on these issues. Some (like Ward Farnsworth and Stephen Burbank) argue that the “cure” (a single fixed-term) might be worse than the “problem” (life tenure). A second group argues for a single, fixed-term of office but believes this can only be accomplished by a constitutional amendment. Scholars such as John Harrison, Steven Calabresi, and James Lindgren fall into this camp. Finally, a third group argues for a single, fixed-term of office for justices and claims that this can be achieved through a simple congressional statutory enactment. The editors, Roger Cramton and Paul Carrington, as well as others (such as Sanford Levinson) have essays arguing this position.

The book operates on two levels. First, it represents an attempt to summarize (though at 500+ pages, it is hardly a summary!) the current debate in the legal academy on the issue. Second, it is an attempt to convince readers that the current system (or lack thereof) of Supreme Court retention is problematic. On the first count, the book succeeds wonderfully; on the second, however, it fails to persuade. I will now say more about the reasons for these conclusions.

The most important attribute of the volume is that it is comprehensive. All sides of the debate are included. While the majority of the pieces favor reform, articles by Farnsworth, Burbank, Garrow, and Hellman call into question both the diagnosis of the “problem” and the solution. This book will be the definitive source for anyone interested in the debate over whether the term of office for Supreme Court justices should be changed. Moreover, the authors’ writing is quite accessible, devoid of a lot of legal jargon and “inside baseball” references. This is one of its greatest strengths: the book can be easily read and understood by anyone interested in the debate; the audience is not limited to academics. Additionally, while there is some redundancy, the multi-faceted nature of the debate is effectively captured, and each chapter provides a different look at the problem, even if some authors ultimately reach the same conclusion.

That being said, I think the book ultimately fails to convince the reader that there is indeed a problem with Supreme Court justices serving for life. [*362] Even supporters like Alan Morrison are forced to admit that, “We are, in short, in almost no better position than were the Framers when they drafted Article III and struggled to predict the consequences of their choices. To be sure, we have over two centuries of experience, but none of it is likely to shed light on this issue. This leave us with little choice but to make our best educated guess and admit that guessing is what we are doing” (p.206; see also Merrill, p.248; Farnsworth, p.268; and Hellman, p.312). Given that this is the case, it is incumbent upon the proponents of reform to demonstrate conclusively that a problem exists. Moreover, given the uncertain consequences of the proposed institutional reform, this problem must be a sufficiently compelling one in order to change the status quo, which, while not perfect, is also not fatally flawed. Although Calabresi and Lindgren show that the average tenure is increasing, it is a large leap to conclude simply that this is a problem. How are outcomes being affected? Is the quality of justice suffering? Systematic evidence answering these questions is sorely lacking (though several authors provide anecdotes).

This leads one to speculate whether this book is a solution in search of a problem. As Alan Morrison says, “The Court is not in crisis, and it will do quite nicely with the change or without it” (p.207). This is from someone who supports the proposed reform. David Garrow concurs: “[N]o public outcry over the length of justices’ service has arisen even in the wake of Chief Justice Rehnquist’s serious bout with thyroid cancer” (p.282). Given this, the reformers have a high hurdle to overcome to convince readers that change is necessary.

There is another significant shortcoming in the book. Part II (“Prolonged Tenure of Justices as Part of a Larger Problem”) reads like an ideological polemic against the Court. For example, Robert Nagel writes that limiting life tenure is a first step to curing some of the ills of the Court, but “if this first step is not possible, we will be faced with yet another sign of the extent to which the Court’s role, while highly destructive to important social and political values, is impervious to challenge” (p.136). Paul Carrington adds that the Framers “did not foresee that self-aggrandizement of John Marshall, much less that of William Howard Taft” (p.178). He continues, “Our federal courts, including the Supreme Court, might regain a sense of their own mortality and fallibility and appreciate the wisdom of deference to the law, to other branches and levels of government, and to the people they serve, a deference that sadly declined through much of the twentieth century” (p.179). All this leads David Garrow to conclude that “it thus becomes all to undeniably clear that the present initiative for Supreme Court term-limits is in its essence an ideologically-motivated ‘Trojan Horse’ masquerading as a nonpartisan modernization reform” (p.280). Indeed, Garrow claims that the authors of the fixed-term proposals hope that this reform “will produce decidedly different, more traditionalist, or in other words more politically conservative rulings than a Court composed of life-tenured Justices would issue” (p.280). I [*363] am not sure that Garrow’s analysis is on point for all of the supporters of this reform. However, the inclusion of Part II in this volume does seem to suggest that, at least for some of the proponents of ending life tenure, ideology is driving their support. This significantly undermines the case for a single, fixed term of office for Justices.

Finally, from the standpoint of a political scientist, I was disappointed to see much of the literature on judicial independence, public opinion, legitimacy, and so on, ignored by the authors of these essays. Two notable exceptions are the pieces by Thomas Merrill and Stephen Burbank. (For what it is worth, I think the essay by Burbank will be the one of most interest to political scientists.) To me, this illustrates the divide that exists between the legal academics and political scientists. Also, I am not sure how this book will be used in the classroom. Obviously, if the movement to change the term of office for Supreme Court Justices gains ground, then this book would probably be adopted in graduate seminars and upper-level undergraduate seminars. In the absence of that, though, this is likely to be a book for scholars and not students.

In sum, regardless of where one comes down on the issue of reforming the term of office for Supreme Court justices, this book is a must read for anyone interested in the politics of judicial reform, as well as those interested in the current debate among legal academics about the effects of life tenure on judges. Additionally, the comprehensive treatment of the issue makes this “one-stop shopping” for scholars and other interested parties. While I think that the book ultimately fails to persuade readers that reform is necessary, Thomas Merrill is correct in saying that “we need more rather than less discussion of the proper institutional design of the Court” (p.248). To that end, this volume serves a valuable purpose.

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