Takeaway #4: Life Tenure Must Go

Who wouldn’t want lifetime job security? All federal judges, including Supreme Court Justices, have life tenure because the founders believed it would enable them to function independently, free from worrying about bearing allegiance to the whims of Kings and Parliaments. They assumed life tenure would incentivize justices to administer justice with utmost fairness and impartiality, and without fear or favor. Here’s what they did not assume:

1. That justices would stay in office for a generation,[1] or even longer. The rigors of the job[2] and shorter life expectancies resulted in an average tenure of less than eight years for President Washington’s eleven appointees. Today, the overall average is 28 years. Moreover, Presidents today want justices who will stay on the court for decades, far beyond the customary retirement age of 65, to help secure their legacy.[3] Justices now work in one very comfortable building and have loads of perks, including access to excellent health care. Accordingly, vacancies may not open up for many years.[4]
2. That political partisanship would play as much of a role as it has in both the selection and confirmation processes. George Washington’s eleven nominees were confirmed with little or no opposition.[5] Political partisanship crept in over time, thanks in large part to the advent of television. Ever since Robert Bork’s contentious rejection in 1987, many Senate confirmation votes have gone almost entirely along party lines.

Then along came the Federalist Society. In all five of the most recent confirmations of Republican-nominated justices, the very partisan and very conservative Federalist Society played the key role. It controls the gateway through which all aspiring Republican candidates to the federal bench must pass. Aspirants must present a portfolio of far-right positions which demonstrate their loyalty to the political ideology of both the Federalist Society and the Republican Party’s far-right fringe. Once nominated, far-right billionaire donors give millions of dollars to fund a PR campaign to secure passage through the Senate. This is unprecedented.[6]

3. That life tenure would eventually become a contributing cause of the public’s loss of trust and confidence in the Supreme Court. I’m sure the founders thought just the opposite.

The combination of these three unforeseeable results has today delivered to us a Supreme Court which has both the time and authority to create a great deal of mischief. Since 1969, when the Warren Court became the Berger Court, the Supreme Court has been in the hands of mostly conservative justices due to a widely disproportionate number of vacancies arising during Republican administrations.[7] This despite the fact that, during this same period, the five Democratic presidents and five Republican presidents held office for an equal number of years.[8] Lately, with six very conservative, Republican-appointed justices (known as the Supermajority), the Supreme Court, in the opinion of many constitutional scholars, is disdainfully – some would say recklessly – rewriting constitutional law, a practice once condemned by conservatives as the modus operandi of the left. Moreover, it’s probable that there will not be a vacancy on the court for the next two presidential terms. By 2033, constitutional law textbooks written before the advent of the Roberts Court may become outdated and in need of substantial revision. Constitutional law professors are already confessing to being in a quandary over how to teach the course going forward. In brief, the events of recent history have made life tenure on the Supreme Court an untenable policy.

The Federalist Society and the Roberts Court could not have made a better argument for ending life tenure and imposing term limits. I’m reasonably sure the founders believed that the benefits and advantages of life tenure would attract and retain honorable men (no women were allowed back then), dedicated to the rule of law, who would bring stability to the law as Presidents and Congresses come and go, and that any rotten apples would be expeditiously removed through the impeachment process. Although the idea of life tenure seems anti-democratic on its face, the founders’ intentions were unquestionably anti-royalist. The Supermajority-dominated Roberts Court, however, is now engaged in unprecedented, destabilizing activism on many important issues of the day. In addition, some members of the Supermajority are ignoring ethics rules and violating public disclosure laws, and they are getting away with it because of an almost equally divided and deeply conflicted Congress renders them impeachment-proof.

To add to the problem, America’s presidents and the Senate are not making a genuine, concerted effort to send our best and brightest jurists to the Supreme Court. It’s true that all nine current justices are intellectually and educationally qualified to serve, but America isn’t getting the kind of highest court it deserves. During President Carter’s term, he established a less political, pro-merit selection process for appointing judges. It’s the best idea any president ever had for filling court vacancies. Unfortunately, he never got the chance to use it for appointing an Associate Justice to the Supreme Court.[9] No president since has used the process.

The current political and cultural climate is increasingly giving America a Supreme Court we neither want nor deserve. The solution: it’s time for term limits. I suggest a plan supported by many scholars: an 18-year term limit. Terms would be staggered so that every president will get two picks during a four-year term. No more would the court become some president’s “legacy.” No more would one president get four picks within two years, as did Richard Nixon; and no president would ever be denied the opportunity.[10]

I support a bill entitled Supreme Court Term Limits and Regular Appointments Act of 2021. It establishes staggered, 18-year terms for Supreme Court Justices and limits the Senate’s advice and consent authority in relation to the appointment of Justices.[11] Unfortunately, I don’t believe the bill has ever moved to the floor of either Congressional chamber for a vote. Moreover, if passed, the Supreme Court’s Supermajority, bathed in job security and still hungry to do more mischief, would take a very dim view of the statute.

The Takeaway: America needs a term-limited Supreme Court to restore confidence in both the court itself and the overall stability to the rule of law. But Congress must act to make it happen. Unfortunately, Congress won’t act. Democracy frustrated again. (Sigh)

For an excellent discourse on term limits, I recommend Part III of Prof. Chemerinsky’s The Case Against the Supreme Court.

Coming up next: Takeaway #5: How the Phrase “Supreme Court Ethics” Became an Oxymoron

[1] A generation is generally thought to be 25 to 30 years.

[2] Back then they rode circuit on horseback or by stagecoach.

[3] See my first article in this series. [LINK}

[4] In the last 30 years there have been only eight vacancies on the court. For eleven years (1994 until 2005), the court remained unchanged. That had never happened before.

[5] Before 1916, the Senate never held a public hearing. Many nominees were confirmed within days of nomination; some on the same day they were nominated.

[6] For an excellent analysis of this unforeseen phenomenon in judicial selection and confirmation politics, I recommend The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court, by Senator Sheldon Whitehouse and Jennifer Mueller.

[7] In that 54-year period 20 justices left the court, and 14 men and 6 women have replaced them. Five new justices were chosen by Democratic presidents and 15 by Republicans.

[8] Some of the credit for the disproportionality goes to Senator Mitch McConnell, who stole two vacancies from Democrats – one from Obama in 2016 and one from Biden in 2020. Without such thefts, we would have a reasonably balanced court today, but instead we gained a far-right Supermajority and lost Roe v. Wade. Thanks, Mitch.

[9] His merit selection process did place future Justice Ruth Bader Ginsberg on the District of Columbia Court of Appeals.

[10] Only three presidents never got the opportunity: William Henry Harrison, who died after 30 days in office, Zachary Taylor, who died after 16 months in office, and Jimmy Carter, who served one full term.

[11] Specifically, the bill requires the President to appoint a Supreme Court Justice every two years. If the appointment of a Justice would result in more than nine Justices on the Court, then the nine most junior Justices shall make up the panel of justices exercising judicial power in cases and controversies. Further, any justice who has served a total of 18 years is deemed retired from regular service and may continue to serve as a Senior Justice. Senior Justices may continue to perform judicial duties assigned to them by the Chief Justice. In the event of a vacancy on the court, the Chief Justice must assign the justice most recently designated as a Senior Justice to serve on the court until the appointment of a new Justice. Additionally, the Senate’s advice and consent authority is waived if the Senate does not act within 120 days of a Justice’s nomination (i.e., Sen. McConnell’s delay tactics would end).