How long is too long? Supreme Court Justices are appointed for life. But the founding fathers didn't imagine 80-year-old Justices and terms lasting 30 years.
But an ideologically diverse group of legal scholars is now not so sure. When it comes to the Supreme Court in particular, there seems to be growing doubt about life tenure, which increasingly translates into 25 to 30 years on the bench, extending into extreme old age.
Judges depart from the lower federal courts with regularity, assuring a steady turnover. But Supreme Court vacancies 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 current Chief Justice, William H. Rehnquist, is 80 years old and suffering from thyroid cancer.
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.
In law-review articles and commentaries, scholars are questioning whether this is what the Framers actually had in mind. (See Debate, p. 24.) 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.
LIFE TENURES DRAWBACKS
"We aim to dispel the myth that life tenure for Justices is fundamental to our democratic self-government," Calabresi and Lindgren write, pointing out that only Rhode Island provides it for state Supreme Court judges and that every other major democracy has judicial age or term limits.
Professor L.A. Scot Powe Jr. of the University of Texas at Austin, in an article five years ago, called life tenure for Justices "the stupidest provision in the Constitution."
Critics see a variety of consequences from life tenure. One is that the scarcity of vacancies turns each nomination into a crisis. Other drawbacks include the temptation for Justices to time their retirements based on political considerations (such as waiting for a President who will nominate a successor with similar views); 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 will tend 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.
To address this, law professors Paul D. Carrington of Duke and Roger C. Cramton of Cornell are circulating a proposal they call the Supreme Court Renewal Act. Since life tenure is specified in the Constitution, most proposals for modifying it--there are several--call for a constitutional amendment. But their proposal is for ordinary legislation by Congress that the two professors believe would withstand constitutional challenge.
They propose giving Justices lifetime appointments to the federal judiciary, but not specifically to the Supreme Court. The President would be entitled to appoint one new Supreme Court Justice during each two-year session of Congress--two nominees in each presidential term--without waiting for a vacancy.
That means, of course, that the Court's total membership would grow. Under the plan, the nine most recently appointed Justices at any given time would constitute the Court's active membership; the rest would be "senior Justices," performing temporary service as needed on other federal courts. Effectively, each new Justice would be active on the Supreme Court for 18 years before reaching "senior" status and being supplanted.
The proposal, which would not affect Justices now serving, has been endorsed "in principle" by two dozen law professors, including some prominent liberals and conservatives.
Any proposal to change the makeup of the Supreme Court is controversial. In 1937, President Franklin D. Roosevelt, who was frustrated that the Court kept ruling his New Deal initiatives unconstitutional, proposed to appoint additional Justices when those serving on the Court reached the age of 70, whether or not they retired. The plan was attacked as "court packing" and ultimately defeated.
Is there anyone left to speak up for life tenure? Ward Farnsworth, a Boston University law professor, favors life tenure.
HESITATE BEFORE SWITCHING
Questioning whether a court that does not reflect the prevailing climate is really a problem, he observes that "one of the valuable things courts do is make unpopular decisions that stick." He doubts that term limits would make Court appointments less political, warning, for example, that they could end up magnifying presidential power. "Life tenure has costs that we have learned to live with," he says, "and we ought to hesitate long before switching."
This conversation is still largely academics talking to one another. But many of them are former Supreme Court clerks, and chances are their former bosses are listening in.
To help students understand a growing debate within the American legal community: whether lifetime appointments for Supreme Court Justices still make sense.
CRITICAL THINKING/LIFE TENURE: Have students think about why, in the Constitution, the Framers gave Supreme Court Justices (indeed, most federal judges) life tenure.
Tell students to imagine that the Framers had allowed Presidents to dismiss Justices at will. If a law supported by the President came before the Court, would Justices be less likely to vote to overturn it, if they knew that their jobs could be in jeopardy? In other words, would ending life tenure for Supreme Court Justices inject politics into the Court's decisions?
CRITICAL THINKING/TERM LIMITS: Tell students to imagine that Justice Smith, 84, opposes President Brown. Although she is eager to retire, Smith can't stand the thought of a Brown appointee replacing her. So she stays on as as long as she can physically make it to work. Does that serve the interests of the Court and the U.S. judicial system?
What is to prevent any Justice who is no longer able to handle the demands of the Court--but who refuses to retire, out of pride or for any other reason--from staying on the job? (Tell students that the Constitution provides that Justices may "hold their Offices during good Behavior.") With the exceptions of criminality or dementia, what behavior might allow for the removal of a Justice?
* What do critics of life tenure mean when they speak of the "crisis" prompted by vacancies on the Court?
* Professor Ward Farnsworth questions whether there really is a problem if the Court does not reflect the prevailing climate. Why might the Court not be concerned about the prevailing climate? (The Court relies on the Constitution for its rulings, not public opinion.)
WEB WATCH: www.supremecourt history.org/02_history/02.html. The Supreme Court Historical Society provides background on the Court, a time line of Justices, and more.
Clarence Thomas, 56 Appointed 1991
David Souter, 65 Appointed 1990
Stephen Breyer, 66 Appointed 1994
Antonin Scalia, 68 Appointed 1986
Anthony Kennedy 68 Appointed 1988
Ruth Bader Ginsburg, 71 Appointed 1993
Sandra Day O'Connor, 74 Appointed 1981
William H. Rehnquist, 80 Appointed 1972
John Paul Stevens, 84 Appointed 1975
How Long Is Too Long?
1. Lifetime tenure for federal judges, including Supreme Court Justices,
a has been demonstrated to be of significant value.
b was first applied during the administration of President Andrew Jackson.
c is required by the Bill of Rights.
d is provided for in the U.S. Constitution.
2. Under a proposed change to the Court, "Senior Justices" would
a hear only the most serious of cases.
b perform temporary service on other federal courts.
c perform largely ceremonial duties, such as swearing in newly appointed federal officials.
d act as managers of the regular Supreme Court Justices.
3. One argument advanced by critics of lifetime tenure for Justices is that
a the scarcity of appointments turns each nomination into a crisis.
b older Justices make too many errors.
c younger Justices are more tolerant of people's innocent mistakes.
d courts work better when there is a mix of older and younger Justices.
4. Which of the following is an argument advanced by supporters of lifetime tenure for Justices?
a Term limits would enhance the likelihood that unqualified judiciaL candidates would slip through the required congressional hearings.
b Lifetime appointments allow Justices to become thoroughly familiar with the Law.
c Lifetime appointments guarantee that Justices will not succumb to corruption.
d Term limits could magnify presidential power (by allowing Presidents to appoint more Justices).
5. One proposed revision of the current system of appointing Supreme Court Justices would allow a President to appoint--new Justices during each presidential term.
1. (d) is provided for in the U.S. Constitution.
2. (b) perform temporary service on other federal courts.
3. (a) the scarcity of appointments turns each one into a crisis.
4. (d) Term limits could magnify presidential power (by allowing Presidents to appoint more Justices).
Linda Greenhouse covers the Supreme Court for The New York Times.
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|Publication:||New York Times Upfront|
|Date:||Mar 7, 2005|
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