This law professor has a new proposal for Supreme Court reform: buyouts

21 July 2022

With the U.S. Supreme Court having taken a radical-right turn — overturning Roe v. Wade and limiting the Environmental Protection Agency’s ability to fight climate change — critics are proposing everything from packing the Court (which President Franklin Delano Roosevelt proposed during the 1930s) to term limits for justices to impeaching Justice Clarence Thomas. But law professor Brian Sheppard, in an op-ed published by The Hill on July 21, has another proposal: buyouts.

By “buyouts,” Sheppard is referring to the type of early retirement packages that some companies offer long-time employees. As Sheppard notes, the United States’ federal government can offer them as well.

“Less punitive than term limits or Court expansion, buyouts could be effective without harming the integrity of the institution,” Sheppard argues. “Most importantly, they stand a chance of getting through the Senate. Buyouts are optional and frequently large payments contingent upon retirement or resignation. During economic crises, they are a common, legal and effective means for companies to maintain profitability. But governments facing budget crunches use them too. Congress has empowered federal agencies to offer buyouts, which the Office of Personnel Management praises for bringing ‘needed organizational change with minimal disruption to the work force.’”

While presidents and many governors are subject to term limits and members of Congress can be voted out of office, Supreme Court justices enjoy lifetime appointments. Justice Anthony Kennedy, Justice Stephen Breyer and Justice Sandra Day O’Connor voluntarily retired from the Court, but Justice Ruth Bader Ginsburg and Justice Antonin Scalia remained on the Court until they died. Critics of the Roberts Court have been saying that having lifetime appointments gives justices way too much power, especially in light of the fact that six of the nine justices were appointed by Republican presidents even though Republicans have lost the popular vote in seven of the United States’ last eight presidential elections.

Some of those critics favor term limits for justices, noting other countries that have them. In Uruguay, for example, Supreme Court justices serve ten-year terms, and retirement at 70 is mandatory. Sheppard doesn’t favor mandatory retirement for U.S. Supreme Court justices, but he believes that “buyouts” could encourage them to retire early.

The law professor, who teaches at Seton Hall Law School in Newark, New Jersey, notes how badly the Court’s credibility has suffered in recent years.

“The Supreme Court needs some organizational change of its own,” Sheppard observes. “Recent polling revealed that its public approval is at an all-time low, and that was before its latest week of controversial rulings. Notably, the most pronounced turn in favorability coincided with the recent shift to a 6-3 split in favor of Republican-appointed justices.”

All three of the Supreme Court justices appointed by former President Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — are Generation Xers, as is President Joe Biden’s appointee, Justice Ketanji Brown Jackson. Gorsuch is 54, Kavanaugh is 57, Barrett is 50, and Jackson is 51. This means that if they live as long as Ginsburg (who was 87 when she died), they could still be on the Court 30, 35 or more years from now.

“There is a good possibility that a President Biden or Trump nominee will be serving 120 years after the birth of those men,” Sheppard writes. “The judiciary is our least democratic branch by design, but extended stays on the Court greatly increase the probability that the values and ideologies of our justices will radically depart from the will of the majority…. Congress should offer substantial buyouts to any Supreme Court justices who retire when they reach 10 years of service on the High Court.”

The law professor continues, “The five justices who have already exceeded that number should be eligible for the payment if they retire within one year. To overcome the considerable allure of ideological power, the sum should be in the millions…. Offering large sums of public money to the powerful is not an ideal solution. The legislative impasse, however, forces us to consider second-best measures.”

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