End Life Tenure for Supreme Court Justices?
posted by Daniel Solove
It’s an old debate, but an important issue: Should U.S. Supreme Court justices have life tenure? Linda Greenhouse has an interesting article in the New York Times:
One reason for the growing consensus is that the practical meaning of life tenure has changed dramatically in recent years. Between 1789 and 1970, according to statistics in an article by Profs. Steven G. Calabresi and James Lindgren of Northwestern University Law School, Supreme Court justices served an average of just under 15 years, with vacancies on the court occurring about once every 2 years.
Since 1970, justices have served nearly twice as long, more than 26 years, with the average interval between vacancies stretching to more than 3 years. (Life tenure today, of course, has a dimension that would surprise the Constitution’s framers; since 1900, the average life expectancy, now 77 years, has increased by 30 years.)
The various proposals differ in big and small ways, although staggered 18-year terms of active service is clearly the most popular choice among those advocating change. Once fully phased in, 18-year terms would permit presidents to make a Supreme Court appointment every two years. The proposal, made by the two Northwestern professors in an article published last year in the Harvard Journal of Law and Public Policy, would require a constitutional amendment, they believe.
Two other advocates for change, Profs. Roger C. Cramton of Cornell Law School and Paul D. Carrington of Duke Law School, say the same result could be accomplished by legislation; their proposal, which they call the Supreme Court Renewal Act, has not found a sponsor. After 18 years, justices would move to senior status, retaining the perquisites of federal judges but no longer hearing cases except to fill in for vacancies.
Meanwhile, each president would get to make two Supreme Court appointments during a four-year term. As the court grew, the nine most junior members would serve as the active justices. . . .
Few other legal systems have taken American-style life tenure as a model. Most countries place term or age limits on their high-court judges, as do 49 states (all but Rhode Island). That fact “demonstrates that there is not the slightest need to grant life tenure in order to guarantee an independent judiciary,” Professor Levinson of Texas wrote last year in his book “Our Undemocratic Constitution.”
I’m in favor of limiting the terms of Supreme Court justices. This will ensure a more even rate of turnover for the Court, and encourage presidents to appoint older more experienced individuals to the Court rather than youngsters who will stick around for eternity. It will prevent one justice from dominating the Court, and it will lower the stakes in any particular Supreme Court appointment, hopefully lessening somewhat the immense politicization of the appointments process.