politics

Should We Abolish Life Tenure for Supreme Court Justices?

Harvard Law School
University of Pittsburgh School of Law
Genesis
Response
Penultimate
Finale

Alan Dershowitz

Harvard Law School

December 12th, 2020
If recently confirmed Justice Barrett lives as long as the late Justice Ginsberg, she may serve on the Supreme Court for nearly 40 years, because the Framers of our Constitution provided that justices be appointed to serve during “good behavior.” This has been interpreted to mean a life-time appointment subject only to impeachment or retirement. At the time of the framing, the average life expectancy was in the 50s though some of our founders, such as Jefferson and Adams, lived into their 80s. Typically, justices served for about 10 years, with a few, such as the great Chief Justice Marshall, serving far longer.
Now that judges often live into their 80s and even 90s, there have been proposals to eliminate life tenure, through an explicit term limit, such as 18 years, or a mandatory retirement age, such as 70 or 75. I would support a term limit but not a mandatory retirement age. Although these proposals for shortening the terms of justices are similar in intent, they are very different in effect.
A mandatory retirement age would encourage presidents to continue to nominate younger and younger justices and judges to assure that they remain on the court for many years. If the retirement age were to be 75, presidents would be inclined to nominate lawyers in their late 30s or early 40s in order to assure a long tenure. That would not serve the interest of the country or of the judiciary. A term limit, on the other hand, would encourage presidents to nominate the best candidates without regard to age. Recall that some of our greatest justices were appointed when they were 60 or so, including Oliver Wendell Holmes, Jr., Louis Brandeis and Ruth Bader Ginsburg. They each served for many years with great distinction.
Would it require a constitutional amendment for Congress to impose term limits on justices? Probably, though some scholars argue that Congress alone would have the power to do so, as long as these limits were not applied retroactively to sitting justices. I think such scholars are probably wrong, but no one could be certain of the outcome of a case, if term limits were imposed and challenged in front of the very judges who would be subject to these limitations.
Along with proposals to impose term limits, there have been suggestions to stagger the terms of justices so that every president can get to nominate at least one justice (President Carter got to nominate no one during his one term, while Trump nominated three—two properly, one stolen from Obama) This could be accomplished if the terms of those initially confirmed under the new term limits would vary. After a while, the terms would be uniform.
There will be some who argue that life-time appointments are the best guarantee of keeping the courts out of politics. I disagree. Life-time appointments may be appropriate for kings, queens, popes, and even professors (though I am not so sure of the latter), but they are not appropriate in a democracy that is based on the rule of law rather than the rule of men and women. Plutonic guardians who serve for life may have certain advantages, but these advantages are inconsistent with principles of democracy.
So let’s not rush to “fix” the Supreme Court with partisan solutions designed to benefit one side or the other, such as “court packing.” Instead let’s look for long term, non-partisan reforms that are consistent both with the institutional role of the High Court and with principles of democracy. A reasonable term limit would contribute to these admirable goals.
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