Presidential Commission on the Supreme Court of the United States
firm might decide cases in light of those plans or might appear to do so. While it might be thought that term limits reduce the pressure for Presidents to appoint younger people, such that most Justices who serve eighteen-year terms may still view their positions on the Court as their last major position, other Justices who have served some portion of the eighteen-year term might decide that they would prefer to take a different unlimited position in government or the private sector rather than filling out the rest of the term. In order to address this problem, term limits proposals would have to be coupled with what opponents see as troubling restrictions on post-Court employment.[30]
Fourth, by design, term limits would produce more turnover on the Supreme Court than has been typical in recent decades. Opponents argue that this turnover could have costs as well as benefits. At the outset, one might object that term limits would deprive the Court of certain benefits that can result from Justices serving for several decades. Some might believe life tenure tends to improve the judgment of the Justices because wisdom and, perhaps, open-mindedness come with age and experience. Moreover, several of the greatest Justices in American history—Chief Justice Marshall comes quickly to mind—served on the Court for a very long time. Opponents argue that a system of term limits would make such distinguished careers less possible—or at least shorter—in the future and might reduce the stature of the Court as a whole, including its stature with the public, the bar, and the lower courts. Moreover, the concern for the advanced age of long-serving Justices ignores, in the view of critics, that the most pronounced divisions on the Court are not by age, but by judicial philosophy.
Another concern about increased turnover is that it might destabilize the Court’s doctrine. To the extent that new Justices have different views of the law than their predecessors, and to the extent that they are willing to overrule or narrow precedents with which they disagree, more turnover on the Supreme Court could lead to more frequent doctrinal shifts, or even cycles in which major precedents are discarded only to be reinstated later, perhaps in very short order. To opponents of term limits, the current system provides sufficient turnover and there is little reason to adopt a new and untried system simply to generate more turnover.[31]
Fifth, those who object to term limits fear that such limits would give the President too much power, an especially worrying concern given how powerful the modern presidency has become. If Presidents make new appointments to the Supreme Court every two years, two-term Presidents will have appointed four of the nine active Justices by the final year of their administrations. The power to appoint four-ninths of the Supreme Court is a substantial power; term limits would lock in that power and make it less subject to the vagaries of chance.[32] Critics might therefore argue that the randomness of presidential opportunities to make
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