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 appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several 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 eighty years of American history. These simulations enable comparative assessments of term-limits 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 sixteen years, but proposals that wait until after the sitting Justices leave the Court to appoint term-limited Justices would take an average of fifty-two 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 sixty percent of the time since President Franklin Roosevelt’s effort to pack the Court, but any of the major term-limits proposals would have reduced the amount of time with extreme imbalance by almost half.
* Professor of Law, University of Chicago Law School. J.D. 2013, Ph.D. 2013, A.M. 2012, Harvard University. M.A., B.A. Yale University, 2007.
† Treiman Professor of Law, Washington University in St. Louis. J.D. Harvard University 2008, A.B. Duke University 2004.
‡ Associate Professor of Law, Washington University in St. Louis. Ph.D., 2015, Cornell University. J.D. 2011, Washington University. B.S.E. 2008, Grand Valley State University.
†† Professor of Public Policy, Harvard Kennedy School. Ph.D. 2012, A.M. 2011, A.B. 2000, Harvard University. J.D. 2004, Stanford University. For helpful conversations and comments, we are grateful to Gabe Roth and participants at workshops at the University of Chicago Law School, Washington University School of Law, NYU Law School, and the American Law & Economics Association Annual Meeting.