Terms limits and judicial reputations

At last week's hybrid SEALS, I moderated an excellent discussion group on court reform. Tom Metzloff (Duke) raised an issue for term-limits proponents--what do we lose or gain by cutting long-serving Justices' careers in half. Among historically great or significant Justices who served way more than 18 years, how much of their greatness or significance occurred within the first 18 years and how much in the back end of their tenure? Alternatively, how much did their later years add or detract from their achievements in those first 18 years?

Tom plans to do more with this, but I wanted to muse on a few names in skeletal fashion; there is a lot more to say in a lot more detail. Two observations. First, how we remember any Justice depends in part on historical vagaries and how those changes alter that Justice's role on the Court. Second, politics and partisan preferences affect whether we see those latter-half achievements or actions as good or bad.

Justice Brennan (1956-90; would have retired in 1974): Brennan's 34-year career divides almost cleanly in half. Until 1969, he was Warren's consigliere on a liberal (later overwhelmingly liberal) Court; for the last 20 years, he was the most influential (and beginning in 1975 senior-most) Justice in a liberal minority. How would we remember Brennan if he only had that first half as the intellectual leader of the liberal majority rather than the second half as great dissenter? This split is historically contingent--had Johnson succeeded in replacing Warren and/or had Fortas not been forced to resign, the Court would not have shifted as much as it did in the first three years of Nixon, leaving Brennan more in the Court's majority for at least a few more years.

Justice Stevens (1975-2010; would have retired in 1993): His first eighteen years were largely non-descript, mostly part of a large middle with an occasional individual voice. His final 15 years were among the longest periods as senior-most Justice in the minority of an evenly divided Court, which is the role for which history will remember him.

Justice Holmes (1902-32; would have retired in 1920): Retires the year after his Abrams dissent. He loses 12 years of continued First Amendment dissents, as well as Buck v. Bell, which remains a stain on his record.

Justice Thomas (1991-Present; would have retired in 2009): Thomas's last twelve years (and counting) have been a more confident and aggressive version of his first 18--solo opinions staking out iconclastic positions, unbound by precedent, and willing to challenge many jurisprudential sacred cows. Is he doing this more than he did prior to 2009? Again, how you feel about this depends on how you feel about the positions Thomas stakes out.

Chief Justice Rehnquist (1972-86; 1986-2005; would have retired in 199o): Like Brennan, Rehnquist enjoyed two quite distinct careers of almost equal length--Most conservative member of the Burger Court authoring many separate opinions and influential Chief Justice. Probably never gets the latter job, because Reagan would not have elevated him if he was four years from retirement.

Chief Justice Taney (1836-64; would have retired in 1854): Off the Court three years before Dred Scott.

We can play this game with a lot of Justices who served 25+ years and this is only intended as an outline. I think Tom is onto something good.