"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour...."
-- U.S. Constitution, Article III, Section 1
That seemed a good idea at the time. The Framers wanted to make the Supreme Court and lower federal courts independent of the political branches and insulate them from popular passions. What better way than to give them life tenure?
James Madison, Alexander Hamilton, and company had little occasion to ponder the possibility that one day most justices would serve longer than your average medieval monarch. The 10 who have retired since 1970 have averaged 25 years on the Court. And if 80-year-old Chief Justice William Rehnquist steps down soon, he will pull the average post-1982 retirement age down a bit.
By contrast, the first 10 justices served an average of under eight years, in part because of the rigors of the "riding circuit" that covered hundreds of miles on horseback. Three left to take other positions. Only two lived to age 70. The 90 justices who had completed their terms by 1970 retired (on average) after 15 years on the bench, at age 68.
Thus have modern medicine -- and modern justices' fondness for their power and glory -- transformed the meaning of life tenure. This longevity has contributed to some serious problems, according to an ideologically diverse group of 45 leading legal scholars, several of whom are publishing law review articles on the subject. Earlier this year, these scholars agreed "in principle" on a proposal that seems especially timely now: staggered, 18-year term limits for all future justices, to marry judicial independence with more frequent and regular injections of new blood by the president and the Senate.
The problems associated with life tenure are subtle but serious:
* Decrepitude. Some justices have remained on the Court until mentally debilitated or, at best, long past their prime. There will be more, given our increasing ability to keep people alive long past the point of mental incompetence. William Douglas, who set the record for Supreme Court tenure (almost 37 years), barely functioned during his last 10 months, after a debilitating stroke in 1975; colleagues informally agreed to nullify any decision in which Douglas cast the deciding vote. Hugo Black and Thurgood Marshall were shadows of their former selves years before retiring, at 85 and 83, respectively. "I'm getting old and falling apart," said Marshall on his last day.
* Intellectual autopilot. Even absent serious health problems, the rigid mind-set that often accompanies advancing age detracts from the open-mindedness that is critical to good judging. Some aging justices, notably the late, fiercely defensive Harry Blackmun (who served to age 85), have come close to putting themselves on autopilot while their clerks have plugged into their new opinions the logic of their old opinions, with liberal dollops of the clerks' own logic.
* Hubristic complacency. If power corrupts, life-tenured power corrupts more completely. The justices' vast power "carries dangers of arrogance, hubris, and abuse," in the words of a paper prepared by the two leading advocates of the 18-year term-limit proposal. "The Founders could not foresee that increases in longevity would imperil the rotation in powerful office essential to representative government," the paper added. The authors are Paul Carrington and Roger Cramton, professors and former deans of the Duke and Cornell law schools, respectively. (Carrington is a Democrat; Cramton, a Republican.)
* Unaccountability. By making new appointments less frequent, longer tenure has diminished the abilities of presidents and senators to provide the only form of democratic accountability that is consistent with judicial independence. The average time between appointments has nearly doubled from 1.7 years before 1970 to 3.3 years since, with no appointments since 1994.
* Randomness. Filling Supreme Court vacancies is a cardinal presidential power. But life tenure leaves each president's allotment to chance, skewed by individual justices' efforts to hang on so as to thwart the ambitions of presidents they don't like. Richard Nixon chose four justices in his first term; Jimmy Carter chose none.
* Uglier confirmation battles. Slower turnover has raised the stakes on each new appointment so high as to make confirmation battles even more intense than they would otherwise be. Conservatives hope, and liberals fear, that President Bush may lock in a young, conservative majority that could revolutionize constitutional law for 20 to 40 years. Small wonder that confirmation proceedings have acquired the ugliest, most demagogic trappings of presidential campaigns.
* Eroded legitimacy. Quasi-monarchical judicial tenure makes it less likely that turnover will lead to reconsideration of erroneous or unpopular constitutional rulings. This feeds doubts about the legitimacy of those rulings among voters and elected officials who feel disenfranchised. People may become less willing to comply if they come to see the justices as enfeebled relics of another era. This is of special concern in the wake of a Gallup Poll in May showing public confidence in the Court at the lowest point since Gallup started taking such polls in 1973 (excepting a 1991 poll skewed by the Clarence Thomas-Anita Hill spectacle).
* Diminished productivity. The justices have cut their number of full opinions each year in half, to about 75, over the past two decades. They also appear to have delegated more of their work to their 20-something law clerks. The clerks do most of the opinion-drafting and screening-out of the 99 percent of all petitions that the justices dismiss without comment. One result is that the Court shuns some unexciting but important cases that it could use to bring more efficiency to our wasteful litigation process.
How much fresh thinking and enthusiasm for long hours of work on sometimes tedious issues should we expect from octogenarians and septuagenarians who have logged 20 to 30 years on the job? Yet the justices' power to limit their own workload makes it easy to stay on without working hard. In this, they are unlike judges on lower courts, where life tenure causes fewer problems because heavy caseloads are a spur to retirement. Supreme Court justices take a three-month summer recess and seven weeks of winter recesses, convene on only about 80 days per year, and have the very brightest of law clerks to do most of their work. Justice Sandra Day O'Connor, for one, obtained reimbursement for 28 trips in 2004 alone, including travels to England, France, and Austria, and published books in both 2002 and 2003.
The 18-year term-limit proposal advocated by Carrington, Cramton, and more than 40 other scholars would provide for a new appointment every two years, or two in every presidential term. After a complex phase-in period, to avoid suspicions that this is a plot to oust current justices, each new appointee would bump the Court's longest-serving member down to "senior justice," with no power to participate in Supreme Court cases except in the event of a temporary vacancy.
This plan would alleviate all of the problems mentioned above. The odds of justices suffering severe loss of mental capacity in office would decline dramatically. The odds that they would settle into autopilot, complacency, or diminished productivity, or would lose touch with the temper of the times would decline substantially. And the guarantee of a new appointment every two years would greatly enhance democratic accountability while lowering the stakes in each confirmation battle.
Scholars disagree on whether a constitutional amendment would be required. Carrington and Cramton say that ordinary legislation should suffice if (as they propose) "senior justices" would retain the right to participate for life in lower-court cases. Other term-limits advocates doubt that such second-class life tenure would pass muster without an amendment. Still other scholars worry that congressional power to set term limits would necessarily include (among other worrisome possibilities) the power to make the terms much shorter than 18 years.
Even if constitutional, the Carrington-Cramton proposal is dauntingly complex, and a hard sell in a Congress more interested in short-term crowd pleasers than in complex solutions to long-term problems. And life tenure has its defenders. Some see slowness to reconsider unpopular decisions as a virtue, not a flaw.
But if life tenure is a good idea, then why has it been shunned by almost all states and all of the world's other democracies? They, too, value judicial independence. But they all have term limits or other forms of accountability.
None of this is to deny that some very old, very senior justices have remained very sharp. Oliver Wendell Holmes Jr. was 90, and had 28 years on the Court under his belt, when at the sight of a pretty girl he exclaimed, "Oh, to be 70 again!" May all of our justices live -- but not rule -- as long as Holmes.