Epstein Calls for Term Limits for Federal Judges

Term Limits for Judges
Richard A. Epstein
Defining Ideas
April 17, 2012

In Federalist No, 78, Alexander Hamilton famously argued that the federal courts were “the least dangerous” branch of government. What he did not understand was that they also proved, over time, to be the worst constructed. The problems here start at the top and work their way down to the bottom. As a recent New York Times column by Duke law professor Paul Carrington points out, the Constitution states that “the judges, both of the supreme and inferior Courts shall hold their offices during good behavior,” which, except in cases of corruption or moral turpitude, effectively means for life.

Big mistake. As Carrington notes, longer life spans now translate into terms of thirty or more years. The independence of the judiciary can be easily preserved with either term limits, say, of eighteen years, or a mandatory retirement age of seventy. Nearly every modern legal system understands the virtue of limiting judicial terms. Carrington, however, goes astray when he links the absence of term limits to the possibility of the conservative justices overturning the Affordable Care Act: “Liberals are concerned that the right-wing tilt of five justices and lifelong appointments ensure a decades-long assault on the power of Congress,” he writes.

Though conservatives should get equally exercised about the opposite effect—that is, of a reelected Barack Obama getting to appoint the next two or three justices—the real risk of a lifetime appointment is not partisanship. It is disproportionate power, not only on the Supreme Court, but for any public official.