Note: This piece was originally published in Reason, and was written by Checks & Balances member Jonathan Adler.
There appears to be increasing support for adopting term limits on Supreme Court justices. My co-blogger Orin Kerr endorsed the issue some time ago, and it has been endorsed more recently by a range of folks, including Fix the Court and Stephen Calabresi. I have raised questions about the proposal, largely on the implementation side, but think it has some merit, particularly given its potential to help de-escalate judicial confirmation fights. My co-blogger Ilya gives the idea “two cheers.”
Not everyone is convinced. In USA Today, the R Street Institute’s Anthony Marcum makes the case against term limits.
Although well-intentioned, term limits have a problem. Not only are they unconstitutional, but they will have the exact opposite result proponents wish for. More, term limits will ensure that court vacancies are inextricably tied to every presidential race and has the potential to create abrupt ideological shifts on the highest court, only increasing the political scrutiny. In other words, term limits will not lower the temperature around nominations, they will leave the country scorched.
I agree that it would likely be unconstitutional to impose term limits on sitting justices, but I am not convinced it would be unconstitutional to redefine the office to which future justices are confirmed to only provide for 18 years of service on the Supreme Court, followed by continuing service on circuit courts thereafter.
Continue reading at Reason.