The following is by Professor David Stras of the University of Minnesota Law School. Professor Stras will occasionally provide commentary on the Court’s business and alert readers to significant academic developments regarding the Supreme Court.
As you may recall from my “ask the author†series several weeks ago, many academics from all ideological and political persuasions have been pushing for term limits or a mandatory retirement age for Supreme Court Justices. Scholars as diverse as Roger Cramton, Paul Carrington, Steven Calabresi and Richard Epstein have entered the debate. One of the key claims underlying the movement is that recent increases in length of tenure of Supreme Court Justices have been both “unprecedented†and “dramatic.†My co-author (Ryan W. Scott) and I disagree about this empirical claim, as I stated several weeks ago in this post, and in our forthcoming response piece in the Harvard Journal of Law and Public Policy that was highlighted during the series (here).
Two political scientists, Justin Crowe and Christopher Karpowitz, also attack the empirical claim that average tenure has been increasing at an alarming rate (see paper here). In their article, which is provocatively titled “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice,†Crowe and Karpowitz point out that we are currently enjoying the longest period (37 years) in history without a short-term (defined as serving 7.23 years or less) Justice. When those short-term Justices are removed from that data set, they observe, then the “present period . . . is not radically out of line with any earlier period in the Court’s history.†Moreover, they correctly point out that, with the exception of Justice Stevens, the retirement of any current member of the Supreme Court would reduce mean tenure, as measured by Professors Calabresi and Lindgren for the current period of 1971-2006. Their study is really interesting, and calls into doubt the normative rationale for many of the recent proposals for reform. If, as they conclude, increases in tenure are, in large part, a result of a recent absence of short-serving Justices, then the most widely-supported reform proposal, nonrenewable term limits of 18 years for Supreme Court Justices, does very little to target the real cause of the “problem.â€
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