« "Crime rates are improving. Too bad crime data is not." | Main | "Rescheduling Marijuana: Implications for Criminal and Collateral Consequences" »
July 29, 2024
Why not consider some form of term limits for all federal judges, not just Supreme Court Justices?
I fully understand why the Supreme Court and its Justices get so much attention. But I also know that anyone deeply concerned about federal jurisprudence, especially as it relates to criminal justice administration, must also attend to the work and composition of the entire federal judiciary. After all, the Supreme court now decides only a few dozen cases each year (with only about a dozen of those criminal cases). But, as detailed here, the federal circuit courts resolve tens of thousands of cases each year and the federal district courts resolve hundreds of thousands of cases each year. (Of this number, nearly 20,000 federal appeals and over 100,000 federal trial court cases deal with various criminal matters.)
I am not sure if I am a supporter of term limits for Supreme Court Justices, as I see sound arguments on both sides of the debate. But I am sure that if we are going to discuss and perhaps rework the terms of service for federal Justices, I would also like to discuss and perhaps rework the terms of service for all federal judges. After all, as detailed here, there are many important federal judges — namely magistrate judges and bankruptcy judges — who serve for fixed terms rather than for life.
Of course, this new Washington Post op-ed from Prez Joe Biden is raising anew these issues and others. Here is part of his pitch for SCOTUS term limits:
What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.
That’s why — in the face of increasing threats to America’s democratic institutions — I am calling for three bold reforms to restore trust and accountability to the court and our democracy....
Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court’s membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.
I could certainly see benefits in making the "timing for [all federal] court nominations more predictable and less arbitrary," as well as value in "reduc[ing] the chance that any single presidency radically alters the makeup of [each federal] court for generations to come." Consequently, I would like to see coming discussions, as the title to this post suggests, to more robustly consider possible term limits for all federal judges and not just Supreme Court Justices.
July 29, 2024 at 09:46 AM | Permalink
Comments
This is so typical of 'rats. Attack the Supreme Court, then propose a fix to undo the rules that the polity has lived by. Everyone knows that Roe v. Wade was bad law in the sense that it was made up, whether or not one thinks that abortion should be legal. And now Biden demagogues the Court.
Posted by: federalist | Jul 29, 2024 10:13:43 AM
Term limits or mandatory retirement at age 70 for all federal judges is an excellent idea.
Posted by: anon12 | Jul 29, 2024 10:25:19 AM
Short of a constitutional amendment, judges and justices are appointed for life. But, other than saying that there will be a supreme court, the Constitution says nothing about the composition of the courts. That leaves some wiggle room in writing statutes on the composition of the courts and the assignment of judges/justices.
Current law takes advantage of that wiggle room by establishing "senior" status. Under the current law, each district/circuit and the Supreme Court has a set number of "active" duty judges/justices. When a judge reaches 70, they can opt for part-time senior status (still being a judge and getting a partial salary but without a full case-load).
While the devil is in the detail, I could see a proposal under which judges/justices are appointed as "active" judges/justices for a regular term and then switch over to "senior" status (same pay, different assignments) after the expiration of the regular term. Of course, from a fiscal standpoint this would be more expensive as it would still be a full salary for less than full-time work, and it would definitely increase the number of judges per district/circuit (which might be a good thing, reducing the caseloads and making it easier for judges to schedule cases for trial/appellate argument). A lot would come down to the rules governing the assignment of cases to senior judges/justices.
Posted by: tmm | Jul 29, 2024 10:40:22 AM
It really is disgusting---Dems smear the Court, then come to the rescue with a solution that would re-establish the respect of society.
Posted by: federalist | Jul 29, 2024 11:06:38 AM
Federalist writes, "Dems smear the Court..." I think it more accurate to say "the Court smears the Court."
Posted by: anon12 | Jul 29, 2024 11:13:33 AM
No. Let's just look at Roe/Casey. No one seriously argues that the Roe/Casey regime is anything more than ipse dixit, and that the Court, from a legal standpoint, was completely justified in returning this issue to the states (where it belongs). Yet, the Dems have threatened violence ("reap the whirlwind"). The Dems smeared Kavanaugh--I mean, guys, let's get real, Ford's story changed a lot. This bit on immunity--if the executive power is vested in the presidency, then he really cannot be prosecuted for acts within that power. No one seriously disagrees with that. And it's a bit rich coming from Dems who have always yapped about "rule of law." Etc. To hell with you hypocritical cynics.
Posted by: federalist | Jul 29, 2024 11:18:59 AM
A stable legal environment is a good thing. More turnover in the Supreme Court would make the legal environment less stable. For that reason, I think it's a bad idea at the Supreme Court level.
Posted by: William Jockusch | Jul 29, 2024 11:30:28 AM
Is there any doubt that if the court was 6-3 in the other direction, there would be no such talk from the Dems?
This is pure political partisanship, attacking democracy while pretending they want to save it.
Time to implement Chesterton’s Fence.
Posted by: TarlsQtr | Jul 29, 2024 11:33:50 AM
Doug: before Article III judges can take "senior status" or fully retire, they must satisfy the Rule of 80---age + years of service = 80. Once that's satisfied, the judge has three options: (1) remain an "active" member of the bench with a full caseload; (2) the judge can take "senior status" which means they have a reduced caseload and still earn their salary for life; or (3) they can simply walk away, fully retire, and keep their salary for life.
As we know, precious few take the third option. I propose we eliminate the first and second options and rework the formula so that all federal judges must retire from the bench when age + years of service = 85. That brings new blood and ideas to the bench and is an objective benchmark that neither party can crab about.
Posted by: Redlon | Jul 29, 2024 1:43:50 PM
An 18-year term limit is roughly around the median time served for Supreme Court justices so term limits would not necessarily produce significant instability in the law. And it would replace a current system in which justices time their retirements in an effort to control their replacements and instability comes from the inability of the justices to just hold on until the next election.
Posted by: tmm | Jul 29, 2024 1:49:58 PM
Mr. Jokusch, a stable legal environment is indeed a good thing. But the current court under the current system is hardly promoting a stable environment by overruling several long-standing precedents.
Posted by: anon14 | Jul 29, 2024 1:52:25 PM
like which ones, anon14?
Posted by: federalist | Jul 29, 2024 1:57:15 PM
Doug: You thoughtful entreat RE: comments has gone unheeded. And quickly.
Please either let someone moderate the comments or shut commenting down. You're being disrespected and flouted, as are the sane thoughtful folks who read and participate in this forum.
Posted by: Schmederalist | Jul 29, 2024 6:42:44 PM
federalist asks which long-standing precedents have been overruled.
Here are a few:
Loper Bright Enterprises v. Raimondo,
No. 22-451 (U.S. June 28, 2024) overruling 40-year-old precedent
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984)
Dobbs v. Jackson Women’s Health Organization,
No. 19-1391 (U.S. June 24, 2022) overruling 47-year-old precedent Roe v. Wade, 410 U.S. 113 (1973)
Knick v. Township of Scott, No. 17-647 (U.S. June 21, 2019) overruling in part 35-year-old precedent Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)
Rucho v. Common Cause, No. 18-422 (U.S. June 27, 2019) overruling 30-year-old precedent Davis v. Bandemer, 478 U.S. 109 (1986)
1986
Janus v. American Federation of State, County, & Municipal Employees, Council 31, No. 16-1466 (U.S. June 27, 2018), overruling 40-year-old precedentAbood v. Detroit Board of Education,
431 U.S. 209 (1977)
South Dakota v. Wayfair, No. 17-494 (U.S. June 21, 2018), overruling 50-year-old precedent
Posted by: anon 14 | Jul 29, 2024 6:46:46 PM
Geez Doug, you JUST asked us to stop doing what f****ist is doing all over this post.
Will you really keep allowing vandals to disgrace this site?
Posted by: Anonymous | Jul 29, 2024 7:11:32 PM
Schmederalist and Anonymous: I did not expect federalst to change his partisan stripes, but I was hoping he would try a bit harder to honor my effort to encourage more on-topic, productive and polite comments. I suspect he might believe he is trying to do better, but your comments reveal that he is still seen to be poisoning the space.
In the hope of advancing the cause, I may get in the habit of deleting some federalist comments that, I surmise, you and others find so off-putting. In fact, I have now deleted a few of his comments in this thread, inspired in part by your comments and in part by emails I have received lamenting that "federalist ... does great damage to the integrity of your site."
I suppose I never really find federalist's snide shtick all that bothersome, but I am surmising that a growing number of readers find him to be the bad apple that spoils the whole bunch. And I certainly do not want federalist or any other commentor to exercise a kind of heckler's veto to prevent commenting and engagement by others. I hope that the deletion of a few of his most wayward comments might help, but I am not confident that it will.
Posted by: Doug B | Jul 29, 2024 8:34:41 PM
anon14,
Yes, precedents have been overruled. My point is that if the composition of the Court were to change more often, that would likely happen more frequently.
Posted by: William Jockusch | Jul 29, 2024 11:13:50 PM
Doug stated: “ And I certainly do not want federalist or any other commentor to exercise a kind of heckler's veto to prevent commenting and engagement by others.”
This is amazing. You just issued a “heckler’s veto” to anyone who doesn’t like federalist’s pov.
He is the least of the problems on this blog. I mean, “Don’t be partisan?” Well, gee, Doug, then don’t post things that are 100% partisan such as Biden wanting to remake the court for partisan advantage. How do you respond to a completely partisan proposal (Biden has also considered court packing) without being partisan?
The impact is removing one side’s point of view.
Posted by: TarlsQtr | Jul 30, 2024 12:05:13 AM
What is amazing, Master Tarls, is the number of different people who write — in the comments and in direct emails — to complain about the frequency and tone and nature of federalist’s comments. You (and others) regularly post partisan points without generating multiple and repeated complaints about poisoning of the comment space.
As I said before and will say again, comments that are on-topic and productive and polite are welcome and encouraged. But wide-spread complaints about the comments, and particularly federalist's, have gotten to the point that I may just need to shut them down entirely. But I figured I would try a more limited response first.
Posted by: Doug B | Jul 30, 2024 6:07:44 AM
As the blog owner, Doug has the right to be partisan if he wants to -- and to delete comments as he sees fit.
I would personally find the blog less interesting if comments were not available.
I have appreciated the fact that Doug does not seem to mind my point of view, even though I can at times be partisan and tend, on average, to support more punishment than he does.
Posted by: William Jockusch | Jul 30, 2024 10:16:36 AM
As a practicing attorney whose focus is defending federal criminal cases, I go to your blog daily for updates on evolving legal issues or ideas that can be incorporated into my everyday practice. The frequent commenters who view your blog as an avenue to spew their partisan venom have lost sight of the purpose of this blog and the heavy work you put in, daily, to make it a first rate clearing house of information. You should use your editorial privilege to sift through the comments before they're posted and delete those that aren't relevant or responsive to your posts.
Posted by: redlon | Jul 30, 2024 10:36:57 AM
Doug deleted comment. Buh bye.
Posted by: federalist | Jul 30, 2024 10:58:37 AM
Back to the original question of the blog:
At all levels of court, there has been a growing tendency in the federal system on the part of judges to time their retirements to assure that the judges will be replaced by a like-minded judge. The last two Supreme Court justices to voluntarily step down during a "hostile" administration were Justice Brennan and Justice Marshall. You can note similar patterns at the Court of Appeals and District Court (although not quite that bad yet).
As a result, any change to the direction of any court is now entirely subject to the randomness of death or debilitating illness. I think that pattern leads to greater long-term instability than setting an automated system in place for gradual transitions.
And unless you believe that current doctrines are completely unaffected by the policy preferences of justices, then elections should matter as to the policy decisions being made by the court and neither party should be able to keep an absolute lock on the judiciary even when they lose three out of four elections.
Posted by: tmm | Jul 30, 2024 12:34:52 PM
I agree that elections should matter. But one does not want to see a Venezuela-type situation where the entire judiciary is loyal to the current Administration. I think Judges who were appointed 30-plus years ago help prevent that.
I think 18-year terms would get dangerously close to the edge. For example, if a President has two terms, followed by another term for their VP, then at the end of the VP's first term, we have a 2/3 fraction of the judges having been appointed by the President or the VP.
I do agree that the tendency of Supreme Court Justices to retire during the term of an Administration of the party that appointed them is concerning. Perhaps there is a better solution.
Posted by: William Jockusch | Jul 30, 2024 1:53:49 PM
Perhaps one could work around the above concerns with a system where each President appoints one Justice for a 36-year term, with the Justice appointing their own successor if they choose to retire, but the 36-year limit still applying to the combined terms of the Justice and their successor(s).
Quite frankly, and unfortunately, each Party in the current US has a tendency to defend any advantages it currently has. Getting the above past Republican State legislatures would require them to feel they are getting something in return.
Posted by: William Jockusch | Jul 30, 2024 2:25:33 PM
There is a reason the current system is in place. The founders were smarter than all of you.
Posted by: TarlsQtr | Jul 30, 2024 5:47:32 PM
Turley, no right wing nut, nails it.
https://jonathanturley.org/2024/07/30/bidens-abandonment-of-the-court-and-his-last-inviolate-principle/
Posted by: TarlsQtr | Jul 30, 2024 5:57:17 PM
"And unless you believe that current doctrines are completely unaffected by the policy preferences of justices, then elections should matter as to the policy decisions being made by the court and neither party should be able to keep an absolute lock on the judiciary even when they lose three out of four elections."
Yes and no. Dealing with bad decisions like Abood and Roe should be the subject of elections, but if the idea is that our constitutional rights, which are not supposed to be subject to the vicissitudes of electoral politics, are somehow subject to those vicissitudes, then they really cannot be called rights anymore. And if our rights are subject to elections, then things like, you know, the suppression of the Hunter Biden laptop story, become a lot mpre problematic than they are right now.
Posted by: rloquitur | Jul 31, 2024 11:51:24 AM