Oregon State Bar Bulletin — MAY 2006

Court Curbs
Life tenure without the possibility of parole
By Jeff Bleich

For as long as there has been a Supreme Court, there have been politicians, academics and others who have wanted to curb its power — and that is no different today. The Supreme Court is a tempting target because it is so clearly the weakest of the three branches, lacking the power of the purse, the ability to raise or direct armies or an electoral fan base. Over the years, many schemes have been devised to reduce the federal courts’ power. Marbury v. Madison itself arose out of the first effort by one party to stack certain federal courts in their favor. Later efforts to accomplish the same thing included Roosevelt’s court-packing plan, which would have greatly expanded the number of justices. Constitutional amendments have also been a popular device. The Eleventh Amendment to the Constitution, for example, was adopted specifically to limit the Court’s jurisdiction over claims by citizens against states. The legislature has since tried in various ways to limit the jurisdiction of the Court over particular subjects or its sources of law. Former House Majority Leader Tom DeLay, for example, introduced legislation to bar the citation of international law in judicial opinions because he was apparently outraged that the justices had cited to international law and practice in considering whether executing juveniles was "cruel and unusual" under contemporary standards. Another approach of court-curbers has been to monkey with the Court’s own internal voting procedures, such as proposed amendments that would have required a supermajority of the Court to void legislation, or giving Congress the power to override a Supreme Court decision, or simply to slash the Court’s budget. But the perennial favorite of those trying to reduce the Court’s power is to go after the justices’ greatest protection against political forces: their life tenure.

As the justices have been called upon more and more to decide politically charged issues, proposals have ranged from ramping up impeachments, to imposing fixed terms or forced retirements, to literal physical attacks on judges, to divine intervention. On this last point, well-known televangelist Pat Robertson implored: "One justice is 83 years old, another has cancer and another has a heart condition. Would it not be possible for God to put it in the minds of these three judges that the time has come to retire?" On the other hand, while not advocating that aggrieved citizens take matters into their own hands, Senator John Cornyn did speculate that "where judges are making political decisions yet are unaccountable to the public, that it builds up to the point where some people engage in violence." Indeed, the challenges have grown serious enough to prompt Justice Sandra Day O’Connor in a recent speech to warn that these virulent political attacks on federal courts and federal judges not only undermine the courts’ ability to protect constitutional freedoms but threaten dictatorship in our nation. Fortunately, however, proposals to have God strike down, or people simply beat up, wayward justices to make them leave office have not gone very far. Nor have attempts to impeach justices. Indeed, in the nation’s history only one justice was ever forced to stand for an impeachment trial (Samuel Chase in 1805), and calls to impeach modern justices such as Chief Justice Earl Warren, and Justices William O. Douglas, Harry Blackmun and Anthony Kennedy, have typically gone nowhere. Which leaves across-the-board term limits as the most serious proposal.

Academics and commentators who favor limiting the tenure of Supreme Court justices argue that this is necessary for several reasons. Some claim that life tenure is dangerous in that it insulates the justices indefinitely from the consequences of their decisions, and thus breeds in them an arrogance and a loss of real-world perspective. Others note that while justices at the time of the founding generally served for only a short period of time, they now are appointed while young and refuse to retire until they are very old. This has increased the average age of the justices, reduced the opportunities for rejuvenating the Court to keep pace with changing times, and given some presidents disproportionately great or little control over the composition of the Court. Others note that term limits will protect the confirmation process itself—reducing the stakes for each appointment and thus allowing the Senate to judge candidates fairly without undue partisanship. Critics of these proposals, however, note that weakening the weakest branch is fraught with hazards, may violate the Constitution, and would ultimately hurt the Supreme Court as an institution and as an arbiter of the law.

The Proposals
Scholars have conjured up many ways to shorten Supreme Court justices’ tenure on the bench. One proposal suggests a congressional statute that would limit Supreme Court justices to 18 years on the bench. The statute would provide that the president would nominate, and the Senate would confirm, judges to fill vacancies on the lower federal courts. Those judges would then be "designated" separately (through presidential appointment and Senate confirmation) to serve on the Supreme Court for 18 years. At the end of the 18-year term, the jurist would leave the Supreme Court and return to a federal circuit court or district court for life, with their "life tenure" still intact. A similar proposal would prescribe an absolute 18-year limit, with vacancies staggered every two years, but through constitutional amendment rather than by statute.

A second statutory proposal, known as "The Supreme Court Renewal Act," likewise would limit justices to 18 years on the Court, but would do so in a slightly different way. Rather than naming the would-be justice to a lower federal court in the first instance, the proposed act, advanced by Professors Paul Carrington and Roger Cramton, would provide for a new justice to be appointed to the Supreme Court and confirmed every two years. Although at any given time there may be well over nine confirmed Supreme Court justices, the active Court would be made up of only its nine most junior members. The senior members of the Court would sit by designation on the lower federal courts, returning to Supreme Court service only in the case of recusals or unscheduled vacancies. Dozens of law professors have endorsed the basic thrust of this proposal.

Other proposed measures would achieve shorter terms through more indirect means. One suggestion advanced by Professor Richard Epstein would amend the Constitution to mandate that justices retire at a fixed age (70). Thus, the nation’s newest justice, Justice Samuel Alito, who recently turned 56, would serve only 14 years on the bench.

Still other proposals rely on voluntary efforts to cut judicial terms. For example, one idea suggests that the Senate could extract a pledge from each prospective Supreme Court nominee that he or she will agree to serve only a fixed term of years. Others have proposed that the Court itself adopt internal rules that would require justices to retire after a fixed term of service. Such a rule would be voluntary in the end, because the internal rule of the Court would be unenforceable.

A last category of proposals relies on the carrot rather than a stick. One proposal would have the Court modify its internal seniority system to discourage long stays on the Court. So, for example, instead of honoring the experience of senior justices by letting them control the assignment of opinions, they would be required to accept assignments. Another proposal would provide more generous retirement benefits that would encourage individual judges to step down after a specified number of years in office.

Constitutional Considerations
As a preliminary matter, proposals seeking reform by statute or political coercion would need to overcome the knotty little problem that the Constitution specifically requires that all federal judges receive life tenure. Article III, Section 1 provides that "(t)he judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." A scheme requiring justices to step down after a fixed period of service or at a certain age would almost certainly violate this provision. A plan to require justices to leave the Supreme Court and assume some other judicial post after 18 years raises a similar constitutional concern: justices may not be considered to "hold their offices" if they are forced to give up the power of their Supreme Court positions, even if they have the option to continue serving in the lower federal courts.

Likewise, proposals that would "designate" judges of the lower federal courts to sit on the Supreme Court also may not pass constitutional muster. These proposals may be technically consistent with the life tenure clause: by appointing judges of the lower federal courts to sit on the Supreme Court, Congress would not be forcing "justices" to forfeit their office when they were required to return to the lower court, since it was that office to which they were originally named. But these proposals might conflict with the Constitution’s requirement of a "supreme court." Article III, Section 1 provides that the judicial power "shall be vested in one supreme court, and in such inferior Courts" as Congress may establish. And Article II, Section 2 contemplates that the president will nominate "judges of the supreme court." These provisions suggest that there is a constitutional distinction between Supreme Court justices and the lower court judges that this reform proposal would not recognize.

Policy Considerations
Aside from these constitutional considerations, proposals to limit Supreme Court justices’ tenure raise serious policy concerns. Proponents of efforts to limit tenure argue that the Court would regularly be infused with new talent and new ideas, which would in turn lead to better decisions. Newer justices would presumably be more in touch with the politics and sentiments of the day, and the Court would be more representative. Confirmation of justices would likely be less contentious, too. If every president were guaranteed two nominations each term, the stakes would be lower since the party out of power could still have a chance to make its own appointment within four years. Finally, such a proposal could provide for smoother transitions. Historically, justices have tended to retire in groups — the recent addition of Chief Justice John Roberts and Justice Alito within months of each other is not a historical anomaly. Although unexpected retirements would make the proposals less than perfect, they could provide for greater consistency over time.

These proposals, however, also may be built on some incorrect assumptions and create far greater problems. As a factual matter, the notion that modern courts are older or have relatively little turnover is a questionable claim. There have been several times in our nation’s history when the Court was just as old (or mature, depending on your view) as it was at the close of the 2004 term, before Chief Justice William Rehnquist’s passing and Justice O’Connor’s retirement. Moreover, the framers very likely anticipated, and even welcomed, a long tenure for Supreme Court justices. In Federalist 78, Alexander Hamilton speaks of a highly-experienced judiciary that has mastered the "very considerable bulk" of legal authorities. The first appointees were all very mature by the standards of that day. And in the first 100 years of the republic, 17 justices served more than the 18 years that certain reform proposals would allot to new Supreme Court justices. Perhaps even more surprising for a Supreme Court with much less prestige than the one we know today, seven of the justices in the country’s first century served more than 30 years—longer than any current member of the Court.

As a matter of policy, moreover, reducing the justices’ historical independence has potentially vast implications. First and foremost, any effort to shift the balance of power based upon dissatisfaction with the decisions of a coordinate branch is a fundamental threat to the entire system of checks and balances. The founders adopted a system of life tenure precisely because of their experience in other systems where judges were too easily coopted by political impulses and provided no effective check at all. Second, by forcing justices to retire, these proposals deprive the Court of their most experienced jurists — those with the longest perspective and knowledge of the law and the Court’s functioning. Many justices actually do their best legal work later in their careers, long after they would have been forced to step down from the bench under these proposals. Commentators have suggested that Justices John Paul Stevens and Justice O’Connor had their most important terms over the last several years, at least when measured in terms of influence and outcome of the major cases. By contrast, each of the proposals would ensure a relatively large number of inexperienced justices would be sitting on the court at any one time. Cutting short justices’ tenure on the bench would also reduce their accountability—their sense of responsibility for the consequences of their decisions and their ability to fine-tune doctrines in response to how they work on the ground. While having fresh perspectives on the Court can infuse new ideas into the Court’s jurisprudence, a constant stream of new justices might result in the type of inconsistent and unpredictable approach to problem-solving that too often characterizes the work of the legislature. Finally, although some justices stay past their prime, this is an extremely rare event, and impeachment provides an appropriate backstop for an incompetent justice who refuses to step down.

In sum, while the calls for eliminating life tenure persist, our better angels have resisted them for over 200 years. And so, the renewed calls may even give us some comfort — they only persist because they have always failed.

Jeff Bleich is a litigator at Munger, Tolles & Olson in San Francisco and a regular contributor to the Bulletin.

© 2006 Jeff Bleich

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