an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Rick Perry apparently supports something like Paul Carrington's proposal-- joined by legal academics across the ideological spectrum, including Sandy Levinson and myself--for 18 year "term limits" for Supreme Court Justices.
"Term limits" is actually a misnomer. The proposal does not actually end life tenure for federal judges; rather, it provides for a new Supreme Court appointment every two years and states that the quorum for deciding cases on appeal consists of the nine Justices most junior in service.
More senior Justices can still participate in choosing cases for granting certiorari and they can also pinch hit when a more junior Justice is recused or otherwise unable to participate. Therefore we should almost never have 4-4 affirmances by an equally divided Court, as has sometimes occured in recent years. For example, if Justice Kagan were recused on a particular matter, the tenth most junior Justice in years of service (David Souter, who under this plan would not have needed to retire) would replace her.
The President and the Senate, knowing that there will be an appointment every two years, and that older Justices could still sit in special situations, would adjust the politics of judicial appointments accordingly. This might change the age at which people are nominated to the Supreme Court, and therefore increase the pool of available candidates.
As Carrington explains, it's possible to do this through ordinary legislation. There is nothing in the Constitution that requires that all of the Justices sit on every case; in the federal courts of appeals, all of the judges sit together only in a small number of en banc cases (in which judges on senior status normally do not participate).