SCOTUS: A Case for Term Limits Over Court Packing

Olson speculates that the free rider problem becomes more relevant in the context of large groups as opposed to smaller groups. By expanding the number of SCOTUS seats, the influence of each justice on the groups decision would be reduced and potentially lead to rational ignorance or lack of effort by a justice to assert their viewpoint as the decisiveness of their decision would be reduced. Really, the only consequence that justices face is scrutiny of the public eye. By keeping the SCOTUS smaller, this scrutiny is greater for each justice, thus encouraging them to make decisions more reflective of constitutional principles and the constituencies that led to their appointment in the first place.

 

Even with just nine justices, an analysis by Kalt and Zupan reveals a significant principal agent problem between the SCOTUS and the American people. Justices have lifelong appointments to the court and thus have few monitoring procedures in place to mitigate shirking of constituent ideologies. In fact, after their appointment, the market never meets again to assess whether a justice’s job is approved of. Since justices are approved by the Presidency and the Senate, there is an immense incentive for voters to remain rationally ignorant. If people have no incentive to acquire knowledge about a political candidate, they certainly have a smaller incentive to obtain knowledge about potential court appointees, and vote for politicians based on their preference for a particular judge. Knowledge surrounding when court seats will open and potential appointees, is extremely difficult, if not impossible to find. Lastly, justices essentially have perfect monopolies over their seats as the barriers to entry are extremely high, so high that the justice either has to be criminally convicted, resign or die to be replaced. Enacting term limits, with the potential to be reappointed, should reduce the principal agent problem. This would institute a performance review method to better align SCOTUS (agent) and American Peoples’ (principle) ideologies over time. Term Limits would also make SCOTUS appointments more predictable. Staggered term limits would ensure each Congress and Presidency gets a specific number of appointments, thus making the SCOTUS more of a prevalent issue to voters in Presidential and Senate elections. This should lead to judges whose ideologies better align with those of the people.