In response to calls to reform the Supreme Court, President Biden created a new commission to study the idea of increasing its size and adding term limits for justices. The panel should avoid falling into the old trap that the United States has little to learn from other countries. The Supreme Court of India, the largest common law bench in the world with jurisdiction over one billion people, suggests that imposing term limits on justices could negatively affect independence. A Supreme Court with a revolving door could also flip flop on issues of major significance such as abortion.
Legal scholars Steven Calabresi and James Lindren argue that enacting term limits of 18 years on justices and giving each president the ability to appoint two justices every term will cut politics from the process. While the Supreme Court of India does not have term limits, a retirement age of 65 is fixed by the constitution and essentially acts as term limits. Justices in India spend an average of just six years on the bench as the age when people are appointed has increased over time. Life expectancy has also risen over the last several decades, and so justices in India are relatively young when they retire and often seek work after their retirement.
One study found that retiring justices in India pander in their decisions involving the government. When comparing the behavior of justices who retired close to an election to the behavior of justices who retired when an election was farther away, the study found that justices are more likely to issue decisions that favor the government when there is no election close to their retirement. When an election is farther away, there is less risk of government turnover, so such decisions mean more opportunities.
Of the last six justices to depart from the Supreme Court of the United States, three have died while in office and three retired at an average age of over 80 years. Even if justices have term limits, the president will still appoint justices at a younger age to ensure that they live out the entire period. As a result, justices are likely to search for and obtain lucrative positions in business or law firms after they retire. Providing them with federal salaries for life or roles in lower circuits is not likely to be enough incentive to prevent them from finding jobs in the private sector.
The constitution of India bars the justices from private practice after they retire. But none of the plans for term limits made from law scholars or the current legislation in Congress propose to prevent justices in the United States from seeking employment with law firms or anywhere else. If the history of the Supreme Court of India offers any guidance for the panel in the United States, term limits could weaken also judicial independence unless employment after justices retire becomes heavily restricted.
Another issue of public concern with term limits is the possibility that the Supreme Court will often flip flop on issues of major significance. A study done by Vanderbilt University examined how Roe versus Wade would be decided by justices that had term limits and were appointed by different presidents. It found that with strong or moderate alignment by justices to the president that appointed them, the Supreme Court would change its collective mind on abortion three times in less than five decades.
The decisions of the Supreme Court of India sometimes change over time on critical issues with the high turnover of justices. A notable instance of shifting precedent happened when the Supreme Court of India initially found it was legal to criminalize intimate acts among same sex couples. Five years later, a panel of justices reversed course and held that it was not legal to criminalize those acts. The chance of conflicting opinions by the Supreme Court of India is magnified by the fact that it does not sit as one since most of the cases are decided by panels of two justices.
The commission of President Biden should look beyond the United States to examine other common law courts. Lessons from the Supreme Court of India warn that term limits could erode judicial independence. Term limits may also lead to shifting opinions on issues of national importance.
Sital Kalantry is a clinical professor for Cornell Law School and a coauthor of several articles and a forthcoming book on the Supreme Court of India.