Conference Description
Reforming the Supreme Court?
How long, in today's circumstances, should Supreme Court Justices fully share in the powers of the Court?
Justices are appointed “for good behavior.” The constitutional use of that term, borrowed from English legislation of 1700, was intended by the Founders to prevent those with political power from using it to influence the outcome of judicial decisions. The term has been assumed to mean life tenure. But life tenure now has consequences impossible to imagine in 1789. Consider that:
Vast improvements in health care have increased longevity so that the probable term of service of most Supreme Court appointees has substantially lengthened. It now may reach beyond the time in which those appointing and confirming new Justices can anticipate the problems that those Justices will be responsible for deciding, or the social or political context in which those decisions will be made. The principal legitimate influence on the Court — appointment by the politically accountable branches of government — is steadily declining.
Since 1925, Supreme Court Justices have largely controlled their own workload. That workload has steadily declined as the ages of the Justices have increased. A Justice is supported by an able staff to which much of the work can be delegated. This circumstance reinforces a tendency of Justices to remain on the Court where they exercise so much power and enjoy so much status. And it magnifies the effect of increased longevity. Since 1971, average tenure in office has increased more than ten years (from an historical average of 15.2 years to 25.5 years); and so has the average age upon leaving office (from 68.5 to 78.8).
While the Court in previous times was on occasion called to decide important public issues, the frequency of that involvement increased in the 20 th century. Numerous issues of great moment to the public are now subject to the almost exclusive control of the Court. Yet as Justices serve for longer periods, presidential appointments and senatorial confirmations become less frequent. As this has become public knowledge, justiciable issues have come to play a major role in presidential elections. Randomly, one president may get three appointments or more and another none. Presidents are given a perverse incentive to appoint younger but like-minded appointees, notwithstanding the possibility that the younger appointee will be transformed while in office. And justices may choose their retirement date to further the appointment of a like-minded successor. These incentives increase the contentiousness of confirmation proceedings and undermine the public’s conception that the Court is an independent branch exercising “judicial”and not “political”authority.
Rotation in office was expected by the Founders to prevent the dominance of a faction over a long period of time. Circumstances today make it more likely that a majority of the Court’s justices may control the Court’s decision-making for a generation or more. The current Court has served together for more than 10 years, the longest period in our history without a new appointment. Holding a powerful office for decades is unique — there is no parallel elsewhere in the federal government, under state constitutions or under those established by representative governments around the world. Until 1971, a new appointment occurred on average every 2.1 years.
If prolonged tenure for Justices is problematic today, what should be done?
A variety of proposals have been made over the years, most involving either age limits or term limits. Age limits indirectly address mental or physical decrepitude and several of the other problems mentioned. Term limits address all of them. Is change possible only by means of a constitutional amendment? A case is now being made that a statutory change can be designed and upheld as constitutional
These and related issues will be considered at an academic conference at Duke University School of Law on April 9, 2005