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Tuesday, June 04, 2019

JOTWELL: Wasserman on multiple authors on the problems with SCOTUS term limits

I have the new Courts Law essay, reviewing Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash (forthcoming in Tex. L. Rev.) and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court (forthcoming in Yale L.J.). The first article shows the doctrinal instability that might arise from 18-year term limits, using an empirical study of Roe; the second offers two alternatives to term limits.

One of the Epps/Sitaraman proposals would have a fifteen-person SCOTUS comprised of ten permanent Justices (five from each major party) and five lower-court judges sitting for one term, chosen unanimously by the permanent members. Democratic presidential candidate Pete Buttigieg has endorsed that proposal, but Elie Mystal believes it is unconstitutional and naive, if exciting.

I somewhat like the other Epps Sitaraman proposal of the Supreme Court Lottery--the "Court" consists of every court of appeals judge and each sitting two-week sitting features a randomly selected panel of nine. This would have the interesting effect of making SCOTUS more like an ordinary federal court, which might not be a bad thing.

Posted by Howard Wasserman on June 4, 2019 at 11:26 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink


The problem is that a mandatory retirement age would require a constitutional amendment. The Epps/Sitaraman proposals (and some term-limits proposals) could be done by statute.

Posted by: Howard Wasserman | Jun 4, 2019 12:05:39 PM

Another alternative would be to set a mandatory retirement age, say 70 or 75. We've already had justices in the recent past refuse to resign when they clearly were no longer capable of doing their job because a president of the opposite party was in power. This would also reduce the fear that a nominee would be sitting for decades.

Posted by: PaulB | Jun 4, 2019 11:58:30 AM

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