Page:EO 14023 Commission Final Report.pdf/122

 that we discuss further below, Presidents (with Senate advice and consent) would only be able to fill out the remaining years of the term for a retiring Justice, eliminating much of the advantage of, and hence the motivation for, retiring strategically. Proponents do not claim that term limits are a panacea for polarization, nor that they would stop political parties from fighting over judicial appointments. But by regularizing Supreme Court appointments, term limits would make the system of Supreme Court appointments fairer, less arbitrary, and more predictable, and therefore enhance the Court’s legitimacy in the eyes of the public.

Finally, in addition to these arguments based in constitutional structure and principle, proponents of term limits also believe that they would enhance the Court’s decisionmaking, on the ground that a regular rotation in personnel tends to improve the quality of decisionmaking over time. Judges, like others, are inevitably a product of their time. After distinguished professional careers and eighteen-year terms on the Court, judges may tend to grow more distant from the experiences and contexts to which their legal decisions apply. Judges, like others, can also become set in their ways, making fresh perspectives on issues more difficult to achieve. Rotation in office introduces new voices and new interpersonal dynamics into the deliberations of multimember bodies, as well as more generational diversity, which may bring valuable perspectives. Ensuring that there are regular changes in composition can be especially important for bodies where a small number of people hold considerable power. Indeed, given how powerful the Court has become as an institution—certainly more powerful than the Framers of our Constitution expected—relying on Justices to voluntarily make way for other figures who can help revitalize the Court is asking a great deal. These are some of the reasons that rules and norms governing the leadership of other organizations often require a change of leadership after many years. These are also some of the reasons that other systems that appoint judges through non-political mechanisms, such as through committees of judges and lawyers, nonetheless impose either term limits or mandatory retirement ages on their judges.

The possibility of imposing a mandatory retirement age on Justices is sometimes offered as an alternative to term limits, and the Commission heard testimony on this possibility. Mandatory retirements would arguably improve the quality of decisionmaking for the reasons stated above and provide some degree of responsiveness to elections over time, while preserving judicial independence by allowing for long terms. As with term limits, a mandatory retirement age would make it possible to know when a given Justice will retire (assuming that the Justice does not die or leave the bench early). But, according to term limit proponents, a mandatory retirement age is inferior to term limits in important respects. It would not