Economist, Jul 4th 2018
Headline: Why Supreme Court Justices Serve Such Long Terms
Byline: S.M.

WITH Justice Anthony Kennedy’s 30 years on the bench ending this month a few days after his 82nd birthday and a partisan fight brewing in the Senate over his successor, public attention has again focused on a quirk of America’s judiciary: the staggeringly long careers of Supreme Court justices. Article III is by far the slimmest of the constitution’s articles laying out the branches of government, but the term of office it specifies for federal judges is virtually unbounded. Judges of both “the supreme and inferior courts”, section 1 reads, “shall hold their offices during good behaviour”. In practice, that means for life, or until the judge decides to hang up his robe.

One path off the court—impeachment—has not amounted to much. In 1804, at the suggestion of President Thomas Jefferson, the House of Representatives served Justice Samuel Chase with articles of impeachment for letting partisanship seep into his decisions. But after the Senate acquitted Chase in 1805, he carried on as justice until his death six years later. Another 14 federal judges have been impeached since 1789; eight have been removed from office. But no Supreme Court justice has ever been ousted for bad behaviour. With Americans living more than twice as long as they did 150 years ago, a life term means that justices typically count their stints in decades. In 2006 two law professors, Steven Calabresi and James Lindgren, noted that justices serving before 1970 served an average of 14.9 years, while those serving after 1970 have served 26.1 years. The five most recent justices to leave the court have served an average of 27.5 years, and that includes an outlier, David Souter, who retired after a modest 18-year tenure in 2009, aged 69.

Why did the framers entrust judges with lifetime appointments, when every other democracy in the world imposes term limits, a mandatory retirement age or both? The so-called “least dangerous branch” would need some shoring up, the founders believed. In order to exercise judgment free from shifting political winds, judges would need a strong measure of autonomy from the legislative and executive departments. For Alexander Hamilton, life tenure was just the ticket: “the best expedient which can be devised in any government” to preserve judicial independence. Without elections to stand for or worries about losing their seats, Hamilton reasoned, justices would be able to hover above the political fray and dispense justice impartially.

With the prospect of Donald Trump choosing a jurist for Justice Kennedy’s seat to entrench a 50-year-and-counting conservative majority, Hamilton’s lofty hopes for life tenure sound quixotic. Decisions like Bush v Gore (in which five Republican-appointed justices effectively gave a Republican the keys to the White House in 2000) or Janus v AFSCME (a case from last month that dealt a blow to public-sector unions) are hard to spin as dispassionate judges faithfully interpreting the law without regard to their political predilections. Justices’ tendency to retire when an ideologically friendly president is in office—as Anthony Kennedy seems to have done—only makes the court look more like a politicised institution ripe for manipulation. To allay the gaming of retirements, and to bring fresh blood to the bench a little less infrequently, Fix the Court (a non-partisan Supreme Court watchdog) has attracted scholarly support for a plan to limit justices’ active service to 18 years, after which they would be eligible to sit on lower federal courts. The proposal calls for biennial appointments, or two picks per presidential term. Something along these lines might address a prescient 18th-century complaint from Brutus, an anti-Federalist writer. The constitution provides for “no power above” judges, Brutus wrote. Justices are “independent of the people, of the legislature and of every power under heaven”. It’s no wonder, then, that justices who shape America for decades on end come to “feel themselves independent of heaven itself”.

Questions: Are life terms for judges a problem that needs to be remedied? If so, would fixed terms be an adequate remedy?   Is the real problem one of life terms or is it the sweeping power of the Supreme Court?