Linda Greenhouse has an article in the Sunday NY Times, Week in Review (p. 5), describing the growing movement for term limits on the US Supreme Court. My colleague, Steve Calabresi, has been discussing this for years, though he wasn’t the first to suggest it. And a few years ago, I discussed our proposal for 18-year term limits on the ConLawProf discussion list. Then in 2002, Calabresi and Akhil Amar did an op-ed for the Washington Post on the topic.
Here are Greenhouse’s opening paragraphs in the NY Times:
How Long Is Too Long for the Court’s Justices?
By LINDA GREENHOUSELifetime tenure for judges was “the best expedient which can be devised in any government,” Alexander Hamilton wrote in The Federalist No. 78, defending the Constitution’s provision for judges to “hold their Offices during good Behavior.” Of the wisdom of that proposition, he added, “there can be no room for doubt.”
But an ideologically diverse group of legal scholars is now not so sure. Judicial tenure? Definitely. A long one? Probably. But life tenure, which increasingly translates into 25 to 30 years on the bench, extending into extreme old age? When it comes to the Supreme Court, at least, there seems to be plenty of room for doubt, and the doubts are growing.
Judges depart from the lower federal courts with regularity, assuring a steady turnover. Supreme Court vacancies, on the other hand, are rare events. It has been nearly 11 years since the last one, when Harry A. Blackmun stepped down at age 85 after 24 years on the court.
The trend is clear. From 1789 to 1970, the average Supreme Court justice served for 15.2 years and retired at 68.5. But since 1970, the average tenure has risen to 25.5 years and the average age at departure to 78.8. [Although Greenhouse doesn’t give her source, these are from my data analysis, though it appears that she misrounded the first figure from 15.12 to 15.2-JL]
In law review articles and commentaries that began as a trickle a few years ago and that now, as these things go, amount to a flood, scholars are questioning whether this is what the Framers had in mind. The modern justices’ longevity “has fundamentally altered the practical meaning and implications of lifetime tenure,” Professors Steven G. Calabresi and James Lindgren of Northwestern University School of Law have written in an unpublished article.
“We aim to dispel the myth that life tenure for justices is fundamental to our democratic self-government,” they write, pointing out that only one state, Rhode Island, provides it for its supreme court judges and that every other major democracy has age or term limits.
The academic critics see a variety of negative consequences from life tenure. One is that the scarcity and randomness of vacancies promise to turn each one into a galvanizing crisis. Other drawbacks include the temptation for justices to time their retirements for political advantage; an overemphasis on youth and staying power as a qualification for nominees; the likelihood that even those justices who escape the infirmities of old age – and, predictably, not all will escape – will tend after many decades to lose touch with the surrounding culture; and the fear that if the court is seen as out of touch and unaccountable to a democratic society, its legitimacy will erode.
“The result is a situation of grave proportions needing correction,” wrote two other law professors, Paul D. Carrington of Duke and Roger C. Cramton of Cornell. “Unchecked power, the Founders correctly believed, has a tendency to produce a degree of hubris and arrogance among those who exercise that power.”
The article goes on from our proposal to discuss some of the details of a proposal by Paul Carrington and Roger Cramton, which is similar to ours, but with a different phase-in. Recently, they circulated a proposal for 16-year term limits, but they have now corrected it to call for 18-year limits, which makes theirs consistent with most other proposals.
Under our proposal (like some others), after a phase-in period a President would appoint a new Justice every odd year. At the end of 18 years, the Justice would go on senior status, and could be assigned to hear cases on other federal courts.
In my data analysis, I found that the problem arose fairly suddenly after 1970. It was not a gradual increase in tenure on the Court over the prior 180 years as human life expectancies rose, though this increase in survival helped make longer tenure possible. Rather, the era since 1970 has been unlike any other, including the immediately preceding 1941-70 period.
UPDATE:
Interesting comments at Daily Constitutional.
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