Friday, September 22, 2023

Nudging the Justices to retire after 18 years


In a previous post I explained how we might achieve the effective equivalent of term limits for Supreme Court Justices by changing the rules of the Court's appellate jurisdiction. According to my proposal, the President and Senate would appoint a new Justice in the first and third year of each President's term. The nine Justices most junior in service would hear cases under the Court's appellate jurisdiction, and all of the Justices would hear cases under the Court's original jurisdiction. 

Because the most important cases before the Court involve appellate jurisdiction, this would create the effective equivalent of 18 year term limits, with the group of Justices hearing appellate cases continually changing as new Justices are added to the Court.

In addition to this proposal, we should adopt additional legislation to give the Justices incentives to retire after 18 years of service. Here are some ways to do this:

1. Justices with more than 18 years of service should sit and hear cases on the circuit courts of appeal in addition to their other Supreme Court duties. Requiring Justices to ride circuit-- i.e., hear cases in the lower federal courts-- has been held constitutional since Stuart v. Laird in 1803.

2. Justices with more than 18 years of service may hire only one law clerk paid for by the government.

3. Justices who retire with at least 9 but no more than 19 years of service will enjoy a federal pension on retirement equal to three times their highest salary as a Justice. Justices who retire after 19 years of service will receive a federal pension equal to one half their highest salary as a Justice. 

This last proposal does not violate Article III's Compensation Clause, because it does not "diminish" the Justices' "Compensation .... during their Continuance in Office." It simply offers the most desirable  package of retirement benefits to those Justices who retire before completing 19 years of service. Note that Congress already varies the amount of retirement benefits  for federal judges by age and years of service under 28 USC Section 371. However, because some Justices may be near or past 19 years of service at the time the law goes into effect, we can and should create special transitional rules for them to avoid unfairness.

These three proposals can operate independently of my original proposal concerning appellate and original jurisdiction. But taken together with the first proposal, these proposals will give most Justices good reasons for retiring between 18 and 19 years of service. After all, if they stay on, they will no longer be hearing the Court's most important cases, they will have a full caseload in the circuit courts, they will have only one clerk to help them, and they will have much smaller retirement benefits. Under these conditions, most Justices will choose to retire.

Addendum: Joey Fishkin of this blog has pointed out in correspondence that one should combine these reforms with strict ethics requirements for the Justices-- stricter than we have today, at any rate. Otherwise rich friends and political allies could offer Justices who stayed on the Court past 19 years a handsome pension, subsidies for extra (unofficial) clerks, and so on. Joey writes: "As a political matter, it’s hard to imagine the scenario where one CAN enact measures aimed at nudging justices toward 18-year terms and CANNOT enact a more binding ethics code, which is quite popular."

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