Should The Supreme Court Have Term Limits?

A lot of people are unhappy with the ideological make-up of the Supreme Court. They say it doesn’t reflect the majority of the country. President Biden’s commission tasked with reforming the Supreme Court started meeting for the first time in May of this year. One of the proposals they’re going to consider is setting term limits on justices. But they’re far from the first group to consider this idea.

Adam Chilton is a Professor of Law at The University of Chicago Law School and the author of a paper that proposes a set of Supreme Court reforms including terms limits, and then runs simulations to show how the make-up of the Court could have been different if their reforms were in place. If we had term limits from the beginning, could we have avoided the problems people have with the Court?

Listen on Apple Podcasts or wherever you enjoy podcasts.

Transcript

William Howell:

I'm William Howell.

Anthony Fowler:

I'm Anthony Fowler.

Wioletta Dziuda:

I'm Wiola Dziuda, and this is Not Another Politics Podcast. So President Biden decided to create a commission called Presidential Commission on the Supreme Court of the United States. And this commission is supposed to investigate various changes that we could implement to how Supreme Court in the US functions, how it's appointed. And one of the interesting proposals is have the judges appointed for fixed term appointments.

Anthony Fowler:

And there are presumably a lot of reasons why Biden is pursuing this commission. Merrick Garland appointment was an important part of this story where Obama appointed Merrick Garland to the Supreme Court. The Republicans refused to even give him a hearing and then Trump hurries through and gets Amy Coney Barrett approved. And so now you have two thirds of the Supreme Court that's appointed by Republican presidents, even though two thirds of the public is not Republican and two thirds of the presidents are not Republican and so forth. And so there might be a lot of people in the center and on the left that are upset with how all of that shook out. Will, you recently read a paper and talked to one of our colleagues at the law school about potential reforms to the Supreme Court, tell us about that.

William Howell:

I spoke with Adam Chilton, who wrote a paper with a number of co-authors called Designing Supreme Court Term Limits, in which they outline the details of a host of possible term limits, fixed term appointments that might be considered. They vary a bit in the specifics. They all have this feature, just this is about 18 year appointments. And what they do in this paper is try to think about the consequences for each of these reforms for levels of turnover on the court and what it would mean for the composition of the court. And they perform a bunch of simulations, wherein they basically replay history over 50 year periods of time. And imagine that these reforms were in place, and then think about how the composition of the court would have changed as a result. 

But before we get into this particular alteration to the institutional design, could you say a bit about what the problem is that needs to be solved? And it might be problems. What's standing behind this? What's the cause for concern?

Adam Chilton:

Probably the primary problem that people are concerned about is the disconnect between the current composition of the Supreme Court and political outcomes that over the last 50 years, Republicans have controlled the White House for 30 of those 50 years. But during that time, they've been able to appoint 14 out of 18 Supreme Court justices. Now this is even more extreme when you factor in that those Republican presidential candidates also did not win the popular election in all of those years. On top of this, though, it'd be one thing if this was just sort of bad luck or good luck, depending on how you think about it. Instead, what's going on is that there's a large amount of strategic retirement that occurs with Supreme Court justices.

Adam Chilton:

So Supreme Court justices now retire when their party controls both the presidency and the Senate to ensure that they can pass on their seat. So we saw this, for instance, recently with Justice Kennedy retiring and that his former clerk, Justice Kavanaugh, being appointed to fill his seat. Now, this all really came to a head with Justice Scalia's death, and then the failed appointment of Justice Merrick Garland to fill the seat, where President Obama nominated Merrick Garland, but since Republicans control the Senate, they declined to hold a hearing. That's one seat that then would have flipped from being a conservative seat to a liberal seat, now this has created the view that not only was their strategic retirement and some bad luck, et cetera, that created the composition of the court, but now also some amount of political manipulation that's created the current status quo.

William Howell:

Why then are fixed terms rather than lifetime appointments for Supreme Court justices the solution? How are we to think about a connection between the problem? And we're going to get into the details of the solution shortly, but in the main, why might this constitute a fix?

Adam Chilton:

So it ensures that the composition of the Supreme Court directly reflects the outcomes of presidential elections. So the most common form of term limits is an 18 year term limit so that justices served for 18 years, which has this nice property that each four year presidential term would be able to appoint two justices. And that happens every year like clockwork. So it would solve the problem of random luck or variances, whatever, determining the ideological composition of the court. And in part, I should add one more thing. It also eliminates, in many cases, the incentive to strategically retire, because if you are in your 16th year of your term, even if you retire, you're not then able to hand off your seat for the foreseeable future.

William Howell:

Okay. So we'll get into the details about what would happen to those kinds of conditions shortly, but I wonder how we got to think about the downsides vis-a-vis judicial independence. As you note in the paper, the big reason for lifetime appointments to the federal judiciary is a notion that judges are meant to be removed from politics and be stalwart defenders of the constitution, not champions of one party or even of popular sentiment. So are we giving up something in terms of the independence of the judiciary by making a move in this direction?

Adam Chilton:

Yeah. So that's perhaps one of the main concerns that's still raised against term limits is that those justices may then be engaged in some form of auditioning behavior for their future roles. So they might worry about ruling in favor of big companies so that they can go be the general counsel at a major firm like Boeing or General Electric or something after, or they might want to go on run for elected office themselves, or they might want be in academia, et cetera.

Adam Chilton:

Now, I think that this is a bit of a red herring, because right now, if the justices wanted to run for office or go make a lot of money or move into academia or whatever it may be, they can choose to engage in this kind of auditioning behavior at any point if you're Justice Thomas or Breyer, et cetera, and then resign at your own timing in your own will, but the justices don't really seem to do that. And so I think that it's likely that the justices, even if they had a fixed term limit would be concerned about their place in history, they'd be relatively old, et cetera. I don't think it's likely that it would change their behavior, but that concern about judicial independence and the final period problem is a major concern.

William Howell:

Can you say too about how we think about replacements in the case of death or retirement? How would that work if we're regularizing the process such that every president can count on to, what do we do in the case where justice dies before her 18 year term is up and how she might be replaced?

Adam Chilton:

Yes. Great question. So how to deal with unexpected vacancies. I don't think anyone has a monopoly on a single good solution for this, because the concern is that if we just allow the sitting president at the time that an unexpected vacancy occurs to appoint someone to the court, either for 18 years, or to fill the remainder of the justice that had an unexpected vacancies term, that that president would have a disproportionate influence on the Supreme Court, which could then create the exact problem that we're trying to solve.

Adam Chilton:

One way that's been called to deal with this is that whoever are the justices that have been term limited out. So for instance, someone who's served their 18 years, and they're now no longer an active sitting justice, that they would essentially be brought back onto the court until a regularly scheduled appointment was made. Other proposals are that someone, for instance, the Senate leader of the party of the president that initially appointed that justice would have the right to fill the seat. This is similar to in some states when a Senate seat becomes open, the governor may be restricted to only be allowed to appoint the Senator that is of the same party as the Senator that stepped out, even for instance, if the governor is Republican, they might have to appoint a Democrat for the seat.

Adam Chilton:

Another proposal our colleague Dan Hemel has put forward is that president should just be allowed to appoint justices every two years. You get to appoint a new justice, and then what happens, happens. And it's possible that you would have some years with the Supreme Court of eight. And under some scenarios, you could even have a Supreme Court of 10 or whatever it may be. And the size of the court can fluctuate based on these unexpected vacancies.

William Howell:

Okay. So a thing that you do then in the paper is not just kind of imagine what the implication of these various designed features might have for outcomes, you perform a whole host of instead simulations, wherein you replay the modern era of the court, well, at least the post 1937, when FDR famously tried to pack the court and to say, all right, imagine we had each of these plans, each of these nine planes that you consider in place, what implications would that have for the duration of time that people would serve? How long would it take to roll out the composition of the court, the ideological balance of the court? Can you say a little bit about how these simulations work before we actually turn to what they show?

Adam Chilton:

Sure thing. What we do is we start in 1937, which is sometimes used as a proxy for the start of the modern Supreme Court, when Roosevelt, as you mentioned, tried to pack the court, that plan failed, but it changed some of the political dynamics of the Supreme Court in the process. And we assume that the exact justices that were on the court as of 1937, where they've same ages, political affiliations, et cetera, are on the court. But we assumed that at that moment that one of these various plans had been in place. And then we move forward each year, simulating when vacancies occurred, or we simulate when unexpected vacancies occur. And to do that, we use the historic data on the lifespan of federal judges. So we look at how long federal judges actually lived. And we use that mortality curve to then simulate whether or not someone would die conditional on their age. Then if a vacancy occurs, we use the rules of a given plan to fill in that seat.

Adam Chilton:

Now we allow each simulation to run for 50 years. So, if a simulation starts in 1937, we let it go forward for 50 more years, but we don't want to just start the simulations in 1937, because then our results could be dependent on whatever the weird features of the court were that year. So we also start simulations in the same way I just described, but start them in '38 or in '39 or '40, et cetera. And so we start the simulations in every year between 1937 and 1970, because that's the last year that gives us 50 years for the simulations to run. Now, one key assumption of the simulations is we assume that all presidential and Senate elections occur as they actually did. So we just take that as a fixed constant. And we assume that the composition of the court wouldn't change the political institutions that are controlled.

William Howell:

So walk us through some of the main findings. What do you discover?

Adam Chilton:

So regardless of what plan is in place, the number of years with extreme ideological imbalance in the court would be dramatically smaller. Now we, for the purposes of this paper, define extreme ideological imbalance is when more than 75% of the seats were appointed by presidents of the same party. So that's when the court is seven to eight one or theoretically nine zero, that would be extremely balanced. Now what we find is having any of these plans in place, regardless of their details, really reduces that kind of ideological imbalance. And you have far more years, where the ideological composition of the court would have been either 5-4 or 6-3.

Adam Chilton:

Now, one consequence, though, of having the court be extremely ideologically imbalanced less frequently is that when appointments are being made, even just regularly scheduled appointments, it's much more likely that those appointments will be made in years in which the court is got a 5-4 split. In other words, the confirmation of an individual justice would control the ideological balance of the Supreme Court. So that would happen much more frequently under any of these proposals as well. Now this as result heightens the need to have things in place like mechanisms that would force the Senate to vote to avoid Senate impasses and avoid this Garland problem that I've been mentioning.

William Howell:

And because of that, do you also then bind that the balance of the court in terms of which party has a majority of seats shifts with greater frequency? So what is the effect of the various term limit rules on what might think of as kind of ideological stability over time in terms of how often you see a switch from 5-4 to 4-5?

Adam Chilton:

For most of these plans, you actually see slightly fewer ideological flips than actually occurred on the status quo. So you might have less flips that's taken place. The way that we measure this is the flips per 20 years to give some sort of sense of how often this happened. And the plans are all produced between something like 0.9 and 1.6 flips on average during the period that this takes place. So in some cases, you see, despite more stability, a little less flipping, you end up having quite a few years of 6-3 or 5-4 courts going forward, but that aren't necessarily flipping from one side all the way to the other quite as frequently as it might otherwise do.

Adam Chilton:

Now, one thing that I should say here is that this is a result with considerable variance, and it depends on the simulation of when you started. So I'm been talking to the saying, the median results are about similar to the actual number of ideological flips, but there could be much more. And so it's possible that you'd have had a great deal more flipping in some of the simulations. And it really depends on when the vacancies occur.

William Howell:

And if you were to handicap the likelihood that one version of these reforms gets some momentum behind it, comes to the fore, what do you think? I mean, what are the political chances that this is going to be something that in the near term, we're likely to be confronting either because the case is going up to the Supreme Court or before that, the Congress will be voting on actual proposals?

Adam Chilton:

So President Biden has put together a presidential commission to study Supreme Court reform, which includes 36 people, mostly leading constitutional law professors, several of our colleagues on the University of Chicago that are supposed to study different possible reforms, including expanding the size of the court, reducing the jurisdiction of the court, having term limits, et cetera. My instinct of these different options that term limits will be to this the most appealing if this panel were to propose anything, any major reform, at least my guess is this is the most appealing.

Adam Chilton:

That said, my guess is a bit in the short term, the votes in the Senate, just simply aren't there. And you'd have to convince Joe Manchin and Kyrsten Sinema and other moderate Democrats to all go along with this. And I don't think that they would. Now what's possible is that this presidential commission endorses an idea like this, nothing happens in the short term, but then perhaps Democrats pick up seats in the midterm elections in the Senate, or the Supreme Court really does issue a blockbuster opinion on abortion rights, on gun control that changes the politics of the situation. But I think he probably need both of those things, which is the public mood turning against the Supreme Court and one party to gain a bigger edge in the Senate before anything's likely to happen.

Anthony Fowler:

Will, so you gave us a little summary already and we heard the interview, is there more that you want to tell us about this paper, any interesting nitty-gritty details that weren't covered in the interview?

William Howell:

Well, I think there are a few things that are worth underscoring, like what is the problem that we're trying to solve? And I guess I'd be interested in both of your thoughts about Adam's characterization, the paper's characterization in your own thinking about why might we want to have a fixed term appointments to begin with?

Wioletta Dziuda:

So in the interview, Adam said that that the problem he thinks in his view that this reform is supposed to fix is this disconnect between political outcomes and the composition of the Supreme Court. So here, immediately, I have two things that make me uneasy. One is why is this a problem in the first place? And the second one, how is this reform actually going to fix that problem, if that's a problem? So I would be interested in what do you think about this, but why would this disconnect be a problem?

Anthony Fowler:

I share your concerns I think, which is we have elected officials in the United States, we have senators and members of Congress and governors and presidents and so on, and we think that they should be beholden to the general public and they should generally reflect the preferences of the public. We don't typically think of Supreme Court Justices in the same way, they are not directly elected, they're not supposed to be constrained by public opinion, for example. And we sometimes want them to do things that are not publicly popular. We want them to look out for minority interests.

Anthony Fowler:

And we can think of lots of landmark Supreme Court decisions that we think of as very good for our country that weren't may not have been democratically popular at the time. Brown v. Board of Education was probably not very popular among the median voter, Roe v. Wade may not have been popular for the median voter, the right for somebody to burn a flag, burn the American flag is not popular among the median voter, but it's something that we think of as important and constitutional and part of our history of free speech and so on. So there's something about the premise that bothers me actually, there's something about the premise that says, oh, we don't want the Supreme Court to be too far away from public opinion, except, of course, and all the other times where we've liked that the Supreme Court was far away from public opinion, right? There's something that bothers me about the premise.

William Howell:

So what do we do with then the fact that over the last 30, 40 years, presidents routinely appoint to the judiciary genuinely, not just to the Supreme Court, people who share their ideological outlook, that our hopes and aspirations for the judiciary is that it sits apart from politics and that they uphold constitutional provisions? But the fact of judicial politics is one in which ideological and party considerations play a prominent role in the selection of judges and justices, but then also in the decisions that judges and justices actually render? And so, if we lived in the world that I think you've characterized, Anthony, would then, I too would be less troubled. What we want are people who are going to be dogged, steadfast defenders of constitutional principles, but what we get are partisans in robes.

Wioletta Dziuda:

But I think there are two responses to what you just said. And I think there's a lot of truth in what you said, but I think one response is, well, if our problem with the Supreme Court is that we do get partisans instead of some sort of impartial judges, then perhaps we should think about ways to reform the Supreme Court that would address that problem. But even if we say, okay, there's no way to address it, the judges would always be partisan, it's not obvious to me that we want the partisan composition of the court to swing back and forth with who is currently in power.

Wioletta Dziuda:

So, like if you look at the recent years, we had a Democratic president and then we had the Republican president, now we have a Democratic president, do we really believe that those elections reflect some sort of major shift in the conservatism or liberalism of the American public that should be reflected in the conservatism or liberalism of the Supreme Court? I don't see that. I think people liked Trump for some reason, and then they disliked him and they prefer to Biden for another reason. And I don't see why this should be reflected in the composition of the court.

Anthony Fowler:

I find what both of you are saying somewhat compelling, and I can see both sides of the argument here. I mean, I think given the political system we're in, we might want to implement term limits or think of solutions to that problem, but I also completely agree with Wiola in the sense that the real problem is where we started, the real problem is that the Supreme Court Justices are acting like ideological legislators. And if we could think of ways to solve that problem, that would be even better. Maybe one solution is we want to remove this from presidents and senators entirely. I know that's obviously unconstitutional as well and it would require an amendment and so on, but maybe we want the justices to be selected by the remaining justices, and maybe we want the justices themselves to be primarily motivated by legal principles, not by any kind of ideological or partisan motivations. So we should be thinking about reforms like that, that could push us in that direction.

Anthony Fowler:

There's something else that bothers me, which is, you'd like to think that all of these legal scholars are recommending term limits because of some principle. And I think there probably is some good principled argument in favor of term limits, but we don't know for sure. You never know if one of the reasons that we're talking about term limits a lot is not because of some principle, but because we just don't like the current composition of the court. That's something to worry about because the whole idea of lifetime appointments of the justices was that they would be immune to these kinds of political pressures. So the idea that as soon as a bunch of legal scholars decide, they don't like the current composition of the court, they say, you know what? We should have term limits for the Supreme Court. There's something that bothers me about that, even if in principle, it might've been a good idea from the beginning to have term limits, you shouldn't decide that you like term limits all of a sudden, just because you don't like a few judges that are on the court right now.

Wioletta Dziuda:

But let me come to the defense of this argument. So there's something more, it's not that they don't like the current composition of the court, but there is a sense in which a conservative court does not seem to be representative of the trends that we'll be seeing in the society over the last X years, where the society is slowly liberalizing their position on abortion and gay rights, environment and gun control has been shifting. So I think it's hard argument to make because whenever you make it, it seems partisan, but there's an argument to be made that the court seems to be more conservative now than where the society is heading. And if we do see a lot of this inertia in the court's composition because of strategic retirements and so on, then that might not bode well for the next 10, 20 years.

Wioletta Dziuda:

So I actually think term limits might be a good idea. First of all, I think there's something to be said about adding fresh minds and fresh thought into the Supreme Court. And I understand that this entire idea behind the Supreme Court is some sort of stability and wisdom and so on, but the world is changing, the way we think is changing. And this much only that the person herself can change, not like as we age, we are set in our ways. And I think the composition of the court should reflect the fact that the society is changing.

William Howell:

So you're dubious of lifetime appointments in any domain, right? The kinds of concerns that you're raising would apply anywhere.

Wioletta Dziuda:

I think so. I think so. And I know what Anthony is going to say right now. Are you going to ask me if I'm going to renounce my tenure when I'm 65? I just got it. But I think I'm old enough that if you had 18 years to how old I am, I'll be ready to renounce my tenure.

Anthony Fowler:

But I think there's something to be said for experience right there, there are returns to experience, you do gain wisdom and just sitting on the court for longer period. So I think it might be very useful to have someone on the court who was around when there was a really important landmark discussion and they can say, here are all the things that we were thinking about way back when, and you lose some of that. So I don't know, it's not obvious to me that the turnover and fresh blood is a good thing, you might want some people who have lots of experience and who, I mean, these are, again, these are supposed to be brilliant legal minds who have been highly vetted as the very best people available. I don't see why you wouldn't still want them to continue serving just because they've been around for 18 years.

William Howell:

But you wouldn't say the nine members of the current Supreme Court are the nine very best legal minds in the country. I mean, they are-

Wioletta Dziuda:

And there are no other-

William Howell:

And that there are no others. And the other thing that we could do to address their concern, because I mean, I share it in some ways, the idea that, well, you reached the 18 year mark and you've done incredibly well but tough off you go, seems not ideal in some circumstances. So, I mean, they don't consider this in the paper, but you could allow for a reappointment, you get appointed when you're 45, you serve with distinction until you're 63, the current president could reappoint you when your time is up, or and if not, and if the current president is from the opposite party, doesn't choose to do so, then the next president who might be of the same party might put you back in when you're 65 or 66 and you could serve another 18 years.

Anthony Fowler:

Yeah, that's interesting. So this reappointment idea starts to look a lot like elections, starts to look a lot like you have an 18 year term, and then if you do a good job and you please the party in power, then you get to keep your job for another 18 years. That seems to go against the spirit of the constitution, which was supposed to insulate the justices from those kinds of political pressures. So I see pros and cons, but it seems to cut against the spirit of the court to say, you're out after 18 years, but if you please just the right people, you get to stay on for another 18 years. It also seems like if this becomes the norm, then you go back to the problem of you're going to have lots of vacancies and then if people just keep getting reappointed and then they die in office, then you go back to the same problem that we had beforehand, I don't know how to solve, then we haven't made any progress on the problem that Chilton et al wanted to solve.

William Howell:

I mean, I take your point that if suddenly we shift into a world in which I'm trying to please the current president so that I might get reappointed, that introduces certain distortions in my behavior. If you have it be a fixed term, then there are other kinds of distortions that you might worry about, about my ability to get a job in the private marketplace or become a lobbyist or something, there's that as well. And so then the question is how do we weigh those relative to the world in which we already recognize that people behave in ways that are patently ideological and they get to do so for life? And then we see all the gamesmanship surrounding that. And that seems pretty bad too. So, if you can figure out what button we push such that we then have enlightened, genuinely neutral arbiters of political disputes who are going to stand by constitutional first principles, great, but given that that's not an option, then we're trading off these different variants.

Wioletta Dziuda:

I don’t know, I think it's clear to me that I would actually choose to have fixed term appointment and with no possibility of reappointment. And let me just address all these issues that you raised. So the issue of ages meant, while these are accomplished judges, I think what we've said is really compelling to me that there are a lot of very accomplished judges and there's nothing preventing the president from appointing an 85 year old if she is the most accomplished judge in the world to the Supreme Court on the age of 85. The pool of accomplished and smart people is out there, we can always draw from them. It's great to have people with experience, it's great to have people with knowledge of the previous cases, but I think 18 years is long enough that it accomplishes that to a large extent, we'll have people with a lot of institutional knowledge.

Wioletta Dziuda:

That sort of career concerns would bother me more if there was reappointment for the reasons that you just mentioned, they bother me less without reappointment, because I think if I were a lawyer, legal scholar, I would think that a position of the Supreme Court would be really a pinnacle of my career. I would replace a lot of importance on what kind of legacy I leave behind, that making sure that I get the super lucrative job afterwards wouldn't be so important to me. And finally, even if I'm wrong, we have this problem with presidents, we don't allow anyone to serve for two terms. And somehow, we think that's a problem we can live with. So why would we think that it would be a bigger problem for the judges? I just don't see how this would be able to always, we can always give them a pension after they serve 18 years, which mitigates some of the concerns.

Anthony Fowler:

I have a proposal just for fun. Just let me hear your thoughts on this. I'm not a legal scholar, but I'm just going to throw something out there. What if the way we select Supreme Court justices is the way we select faculty members at the Harris School, which is the faculty decides, that what if the judges themselves, there's a vacancy, the eight remaining judges have to select the new judge? And let's just suppose that it has to be unanimous, they have to find someone that they all agree on. And if they don't, then there's something really bad that happens. If they don't, then, if they can't agree.

Wioletta Dziuda:

Like a dungeon opens underneath.

Anthony Fowler:

It would be like the College of Cardinals, like they just can't come out of there.

Wioletta Dziuda:

And so they would be surprised every time.

Anthony Fowler:

You have to stay in there with no food and drink and you can't come out until you pick someone, or it could be, if you can't agree after a certain period of time, then we just pick someone out of the phone book randomly, and they're on the Supreme Court. So you have a strong incentive to figure this out.

William Howell:

Two things to underscore. I mean, I think it's kind of fun. I mean, there are equivalents of this in other countries where they do this, two things. One is, it matters a ton where you start, obviously. So, if you start in a world, I mean, in the extreme where everybody right now is extremely conservative, then they can just perpetuate this ever more by just reappointing everybody who's conservative.

Anthony Fowler:

Well, not everybody, you know what I mean? You've got three liberals on the court and they would all have to sign off on my proposal.

William Howell:

That's right. But you could see how the competition's going to six to three is going to matter going forward. So there's that. The other thing that you would worry about again is simply, we have to think about what the role of the judiciary is in democracy. And if what you think is that it's meant to uphold fixed constitutional principles and apply them, then we can proceed with a fair measure of comfort with that you've described. But if you think it ought to reflect public opinion in some kind of way or the sentiments of the larger public about the purposes of government, well, then you'd worry about this extreme form of insulation for the judiciary, right? You'd want some kind of democratic check that you've just shut down. Would you give them fixed terms?

Anthony Fowler:

I mean, I think it's not necessary anymore. I think if you fix, if you-

Wioletta Dziuda:

Yeah, because the dungeon opens up to contain them, no term limits, needed. Sorry.

Anthony Fowler:

Oh gosh.

William Howell:

Hey, if you're getting a lot out of the research that we discussed on this show, there's another University of Chicago Podcast Network show that you should check out. It's called Big Brains. Big Brains brings you the engaging stories behind the pioneering research and pivotal breakthroughs reshaping our world, change how you see the world through research. Keep up with the latest academic thinking with Big Brains, part of the University of Chicago Podcast Network.

William Howell:

All right. So what did you guys think? We have to do, I mean, the core conversation ranged too widely. The core of this paper consisted of a bunch of simulations that generated a set of predictions about how the composition of the court and turnover within the court would vary under these alternative appointment and mechanisms. And I wonder what you thought of those simulations, but this speaks to how much weight we want to put on the findings that come out of the simulations that don't allow for either anticipatory or a strategic response by a Congress or by a president or by an electorate.

William Howell:

And I guess, it's a moreover that what they do is they fix the outcome of presidential elections over the past, over 50 year period, and then say, what are the consequences then for who actually is appointed and therefore the composition of the court under these different rules? But a world in which you've got a five to four court, and there are two judges that are coming up from the same party. And then members of one party you can anticipate who were running for president, anticipate them saying, look, if we're going to hold on to the court, you've got to vote for me. Otherwise, we're going to lose the court and all these other things are going to follow from it. And then that might bear on what an electorate does, that in 2016, McConnell played an important role in getting Trump elected because by holding out this one seat and then Trump coming forward and downloading a list of Republican nominees that were approved by the Federalist Society, he was able to say, you see, we can turn this thing around. This is the first act that I'm going to take.

William Howell:

And his ability to deliver on that attracted some votes, people who might've looked upon him with a fair bit of skepticism because they weren't convinced he was a true conservative or because they were troubled by his excesses on the campaign trail. And so in that kind of way, I mean, that's something that's true of a contemporary politics. It certainly would be true in a world in which you could count on being able to make two Supreme Court appointments that might bear on electoral outcomes. And so holding that fixed and then running the simulations doesn't necessarily yield a set of outcomes that we would actually observe.

Anthony Fowler:

Your concern is that a bunch of voters who might otherwise vote for president based on competence and who's going to be a good leader, they end up just voting based on ideology and saying, the Supreme Court's too important, we can't, I maybe I'm a conservative, but I don't like Donald Trump. I'd prefer that Donald Trump not be president, but I can't risk letting two more liberals on the court. And so I end up voting for Donald Trump, nevertheless. And so that's the concern you have in mind.

Wioletta Dziuda:

I think that's a really valid concern that the elections would be more about the Supreme Court than they are right now and in a predictable way, because every president appoints two judges. And yeah, that would lead to even higher polarization and lower accountability of the presidents.

William Howell:

All the more so, because I don't know, can I have it both ways? I don't think I can have it both ways. What I was about to say, which then I think is wrong is all the more so, because the simulations show that you have a more balanced court and so therefore, the composition of the court is imbalanced, but I don't get to have it both ways.

Wioletta Dziuda:

No, no. So I think there are two things. One is that the simulations held it constant and what does this assumption do to the believability of this simulations, but another thing that you're pointing out is this unintended consequences, not necessarily for the composition of the Supreme Court, but for the elections, that they will be more partisan and more separated from the economic outcomes that the president delivers and more about forward-looking composition of the Supreme Court. And I would worry about that quite a bit.

Anthony Fowler:

And that might vary. I mean, this already a consideration, right? An every presidential election that's already something that's on the minds of voters. I mean, it'd be all the more so consideration if it was a virtual guarantee that there were two judicial seats up for grabs every time, but it's already something that voters are thinking about. So to the extent that we think this is a problem, this is really a reason to go back and think about other reforms that could improve the court like we talked about before, rather than a reason to favor term limits versus not.

William Howell:

Yeah, I think it's a problem, not because it's something about our politics that we want to try to eliminate. It's a problem for us in thinking about how seriously to take the results of the simulations. And to be clear, it's going to vary. A world in which there's only two that are up, and I know that there are only two and the competition of the court is eight to one, then maybe I don't worry so much about Supreme Court appointments when casting a presidential vote, because I know they're only going to be two in play, it's not going to change the outcome, but I worry more in a world in which it's five to four.

Anthony Fowler:

So, if you're right that in the world with Supreme Court term limits, you get more partisan ideological voting in presidential elections. And if it's the case that the public, suppose the general public on average prefers liberal Supreme Court justices over conservative justices, you might worry that this could inadvertently lead to Democrats winning more presidential elections and doing so consistently and could actually skew the court even more away from the median voter than what we have now potentially.

Wioletta Dziuda:

That's possible.

Anthony Fowler:

Or it could go the other way. I don't know.

Wioletta Dziuda:

So going back to the concern about how actually endogenizing the behavior of voters and judges affect the solution. So like the scenario that I think it's not completely implausible is as follows that we end up having lots of swings between Democrats and Republicans being in power. As a result, the court would be swinging from left to right all the time. And judges operate under precedent and the status quo once they drew one way, it's actually harder to move the law in the other direction. And I would worry that those effects would actually have impact on how judges vote, that they would become a little bit more conservative than in the voting behavior, because they know that, okay, now we have the power, so let's just swing everything to the right, because that's going to make it harder for the next liberal courts to swing it in the other direction. So I think those would be the unintended consequences of strategic behavior that I would worry about. 

 

So what's your bottom line?

Anthony Fowler:

I really don't have much of a bottom line here. I mean, we've talked a lot about this.

Wioletta Dziuda:

Where do you fall on the 18 year term limits?

Anthony Fowler:

Yeah. There are good arguments in favor of the 18 year term limits. If you could go back in time and whisper in the founder's ears and say, maybe this would be, I think that probably would be a good idea, but I'm not gung-ho about the term limits for some of the reasons that we've been talking about. And I think our efforts could be better directed elsewhere, but I still think the paper is interesting and they're just, I think as far as evaluating these proposals and thinking about the implications of them, I think they're doing a very valuable thing. Did they make me excited about term limits for the Supreme Court justices? Probably not.

William Howell:

They make me excited about term limits. They do. Well, I mean, I guess what I liked about the paper is how it attended to a set of reform proposals that are all on offer and encourage us to think through the differences between them and their implications for a set of quantities of interests, like what does this mean for turnover and compositional effects of the Supreme Court? And we know that the composition of the Supreme Court, we may not like it, but the partisan composition of the Supreme Court matters a ton for the decisions that are actually rendered.

William Howell:

I'm not sure that the findings of the simulations themselves is what convince me, that fixed terms are the right way to go, but for a host of reasons that we also discussed, I'm inclined to support them. I am really troubled about a world in which particularly as people live longer, that we have people who are serving in positions of power based upon a single appointment for decades and decades, that 18 years is a good amount of time. It ensures that presidents can each appoint two within a particular term. And you can stagger it that way while still keeping nine as the number of Supreme Court justices that we have. So I think on net, I come around, I share Adam Chilton's view, which is that we ought to go down this road and adopt this proposal. But I am highly suspect that this Supreme Court commission is going to actually make this recommendation much less than the reform will actually be adopted.

Wioletta Dziuda:

I also support 18 fixed term for the Supreme Court judges for, as I said, different reasons than the authors do or some proponents of it do, but I think there are good reasons to support it. But I think what the paper made me realize even more than what I realized before is that there's a variety of issues that we have with the Supreme Court that this reform is not going to fix. And it's actually very hard to think about a reform that's going to fix it. Yeah, it's worth trying. So perhaps this commission is going to give us some additional suggestions that we are going to discuss on our further episodes. And perhaps we're going to move forward with some reforms.

William Howell:

Thanks for listening to Not Another Politics Podcast.

Wioletta Dziuda:

Our show is a podcast from the Harris School of Public Policy, and it's produced by Matt Hodapp. Thanks for listening.