New York, March 25, 2014—
A proposed constitutional amendment introducing term limits for U.S. Supreme Court justices could move the court further in the direction of a “living Constitution” approach to constitutional interpretation, said Columbia Law School Professor Thomas W. Merrill
in a March 11 debate with Northwestern University School of Law Professor James Lindgren.
Lindgren, a former classmate and colleague of Merrill’s at the University of Chicago and Northwestern respectively, began the debate advocating a constitutional amendment instituting term limits for Supreme Court justices. He proposed that, after a period of transition from the current system, justices be limited to 18-year terms so that a new member would be nominated in each odd year, giving presidents 2 nominees for each 4-year executive term. He presented evidence demonstrating that in recent decades justices have tended to linger on the court longer than their predecessors, and argued that term limits would help return the Supreme Court to its historic norm of shorter terms.
“Except for the state of Rhode Island, no other western jurisdiction has life tenure for high court justices,” Lindgren said. “Term limits would help usher out judges with mental decrepitude and loss of stamina, eliminate strategic retirement for political reasons, reduce animosity in confirmation, and return to traditional levels of judicial independence.”
Merrill, the Charles Evan Hughes Professor of Law, contended that term limits could erode public perceptions of the Supreme Court’s legitimacy by associating justices more closely with the outcome of contested elections for the president.
“Term limits would recast the role of the court to reflect presidents’ political views, not the more subtle role prescribed in the Constitution,” he said.
Referencing his prior service as deputy solicitor general, Merrill suggested that with or without term limits the Supreme Court might be too rarified and insulated to afford the American citizenry a voice in the judicial process.
“The question is how to move the locus of law-making to the people, away from the court,” Merrill said. “We’re stuck with a situation where justices effectively captured by their law clerks make decisions without necessarily referencing the views of the polity.”