concludes that some of these proposals rest on sounder constitutional ground than others. Nonetheless, most such proposals would require significant changes to our federal judicial system and offer uncertain practical benefits.
Chapter 3
Chapter 3 considers proposals for establishing non-renewable term limits for Supreme Court Justices. Proponents of term limits argue that they would help ensure that the Court’s membership is broadly responsive to the outcome of elections over time; make appointments to the Court more predictable and less arbitrary; reduce the chances that excess power might be concentrated in any single Justice for extended periods of time; and enhance the Court’s decisionmaking by ensuring regular rotation in decisionmakers, while maintaining judicial independence by guaranteeing long terms and lifetime salaries. Opponents of term limits argue that eliminating life tenure would weaken the Constitution’s express protection of judicial independence, which could undermine the Court’s legitimacy; further politicize the selection and confirmation process by requiring confirmations every two years; heighten the perception that Justices are partisan or political actors; and destabilize Court doctrine. Opponents do not agree that long fixed terms and lifetime salaries would solve these problems.
Without taking a position on the merits of term limits, the Chapter considers design questions that would have to be addressed were term limits to be adopted. It begins by considering how to draft a constitutional amendment to establish term limits and then proceeds to consider whether a similar system could be adopted by statute. In this analysis, the Chapter addresses key implementation questions, including the length of terms; the number of appointments a President should be able to make in a four-year term; how to transition from our current system of life tenure to a term-limited system; whether to impose constraints on Justices’ post-tenure employment; and the challenge presented by potential impasses in the Senate’s confirmation process. Opponents of term limits cite what they believe to be the intractability of these implementation questions as reason not to pursue term limits. Proponents emphasize that the benefits of term limits warrant grappling with what they believe are difficult but soluble design questions.
Chapter 4
Chapter 4 explores proposals that would reduce the power of the Supreme Court or of the judicial branch as a whole. Many proposals for reforming the Court accept the scope of its power more or less as a given. By contrast, the proposals canvassed in this Chapter would curb
