The Supremes Again, Now a Proposal

I don’t believe in lifetime terms, not for popes, not for Supreme Court justices. Right now the issue is Supreme Courts justices.

Article III, Section 1 of the Constitution states that “Judges, both of the inferior and supreme Courts, shall hold their Offices during good Behaviour,” which has been understood as until they resign, retire, or die.  Well, they can be impeached, although “good behavior” has not been viewed as creating any kind of special standard for that.

From 1789 until 1970, the average tenure of justice was just under 15 years.  Since 1970, it has been over 25 years. The country has been spared serious problems of Supreme Court justices whose mental powers have seriously declined with age—although in some instances it’s been hard to tell.  Instead, the major problem has been that the composition of the Court depends on the lottery of longevity, the successes or failures of modern medicine, or, as with Justice Scalia, the sudden intervention of the Grim Reaper.

As the ideological leanings of the country and the justices have grown more polarized, the stakes of this crapshoot have grown higher—and the consequent political machinations more intense, to the point of undermining the Court’s legitimacy. Witness the Republican refusal to give a hearing, let alone a vote, to President Obama’s nominee to succeed Scalia.  Witness the pressure to choose nominees young in years, and thus with potentially more decades of tenure, rather than candidates who have accumulated more experience and longer records. 

Is there a better way? 

For some time, constitutional scholars on both left and right, along with political scientists and even a few political leaders, have been proposing a fixed term for Supreme Court justices. Suggestions have run from 10 to 20 years, with a few radical arguments for even briefer terms.

A strong consensus has arisen around single terms of 18 years staggered so that two appointments will arise in each four years of a presidential term.  If a justice died or retired before serving the 18-year term, an appointment would be made in the regular way by presidential nomination and senate approval to fill out the vacant term.

Such a change would most probably require a constitutional amendment.  It would therefore need broad support.  Both political parties would have to see it in their long-run interest.

Thanks to the looming Gorsuch, the case for such limits has popped up again, for example at the liberal website Vox.  Some conservatives have fired back warnings that limiting tenure threatens to politicize the Court and bend it toward populism.  One wonders whether they would be saying the same thing if Hillary had been elected. 

Ten years ago, Steven G. Calabresi and James Lindgren made the case for the 18-year limit (and exactly how we could transition to it) in a 109-page article in the Harvard Journal of Law and Public Policy.  They also addressed a wide variety of objections, convincingly arguing that such a limit would no more favor liberal approaches to constitutional interpretation than conservative ones.

Calabresi and Lindgren surveyed proposals for establishing limits by statute rather than a constitutional amendment or even by doing it through voluntary pledges of nominees or internal Supreme Court rules.  They were skeptical. Their main point remains: Lifetime tenure is now undermining the very purpose—independence from political partisanship—the Founders instituted it to serve.  It needs to be reassessed and if possible revised.

This is not an idea whose time has come.  It’s an idea whose time for wide and serious discussion has come.     

 

Peter Steinfels, a former editor of Commonweal and religion writer for the New York Times, is a University Professor Emeritus at Fordham University and author of A People Adrift: The Crisis of the Roman Catholic Church in America.

Also by this author
A Striking Contrast

Please email comments to [email protected] and join the conversation on our Facebook page.

Must Reads

Politics
Religion
Religion
Religion
Books
Collections