Harvard Professor Has Plan to Persuade Supreme Court Justices to Retire

A Harvard professor has theorized a way to incentivize U.S. Supreme Court justices to retire early.
Mark Tushnet, William Nelson Cromwell professor of law emeritus at Harvard Law School, outlined his suggestions for Supreme Court reform in a recent 22-page essay. Tushnet presented several proposals as political leaders have considered reform amid several controversial opinions issued by the court, such as its July ruling regarding presidential immunity and how it pertains to former President Donald Trump.
President Joe Biden unveiled his reform plan at the end of July in the first public engagement since he ended his reelection campaign and endorsed Vice President Kamala Harris as the Democratic nominee against Trump.
During his speech, Biden expressed his concerns regarding recent decisions by the conservative-leaning court, particularly regarding presidential immunity. He also spoke in favor of an 18-year term limit for justices to prevent “an extreme court.” The U.S. is the only major constitutional democracy that gives lifetime seats to its high court.
Tushnet proposed a different approach when it comes to term limits: incentivizing the justices to retire. He pointed out that to mandate reform through statute, elected officials committed to reform must control the House, Senate and presidency. As Congress controls the court’s budget, Tushnet suggested that members of Congress should “reduce the number of law clerks each justice is authorized to hire.”
Newsweek reached out to Tushnet, the Supreme Court and to Biden’s press team by email for comment.
“The rationale is that the Court has substantially reduced the number of cases it decides on the merits while retaining and even expanding the number of law clerks each justice has—and that it is good public policy for justices to write more of ‘their’ opinions [‘more of’ meaning both a larger number written personally by each justice and a greater portion of each opinion issued under the justice’s name],” Tushnet wrote. “We know enough about the way justices employ law clerks to believe that reducing the number of law clerks will give incentives to older justices to retire.
“They might respond to the reduction in the number of law clerks by reorganizing their offices, which is to say that the incentive effects of this proposal are only incentive effects, not mandates.”
Supreme Court justices will return to the bench in October, one month before Election Day.