Term Limits for the Supreme Court: Life Tenure Reconsidered

Article excerpt

INTRODUCTION
I.   THE NEED FOR REFORM: THE EXPANSION
     OF LIFE TENURE
     A. The Expansion of Life Tenure
        Documented
     B. Periodization and Related Empirical
        Issues
     C. Explaining the Trends in Life Tenure
     D. Consequences of the Expansion of
        Life Tenure
        1. Reduced Democratic Accountability
        2. Increased Politicization of the
           Confirmation Process
        3. A Rise in "Mental Decrepitude"
           on the Court
     E. The Rarity of Life Tenure in the
       World's Constitutional Courts
II.  TERM LIMITS FOR THE SUPREME COURT
     A. Imposing Term Limits Through
        Constitutional Amendment
     B. The Term Limits Proposal
     C. Advantages of the Proposal
     D. Objections to the Proposal
        (and Responses Thereto)
III. ALTERNATIVE MEANS OF SOLVING THE
     TENURE PROBLEM AND THEIR DRAWBACKS
     A. Imposing Term Limits by Statute
        1. The Calabresi-Lindgren Proposal
        2. The Carrington-Cramton Proposal
        3. The Constitutionality of the Two
           Statutory Proposals
        4. The Desirability of Imposing
           Term Limits by Statute
     B. Imposing Term Limits through
        Informal Practice
        1. Senate-Imposed Limits Through
           Term Limit Pledges
        2. Limits Imposed Through Internal
           Court Rules
        3. Justice-Imposed Limits Through
           Voluntary Retirement
CONCLUSION
APPENDIX

INTRODUCTION

In June 2005, at the end of its October 2004 Term, the U.S. Supreme Court's nine members had served together for almost eleven years, longer than any other group of nine Justices in the nation's history. (1) Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Moreover, before the death of Chief Justice William Rehnquist in September 2005 and Justice Sandra Day O'Connor's announcement in July 2005 of her retirement that eventually took effect on January 31, 2006, five of the nine Justices had served on the Court for more than seventeen years, and three of those had served for more than twenty-three years. (2) The other four Justices had each already spent between ten and fourteen years on the Court. At the same time, four of these nine Justices were seventy years of age or older, and only one was under sixty-five--once the traditional retirement age in business. (3) Because of the long tenure of these members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005. (4)

We believe the American constitutional rule granting life tenure to Supreme Court Justices (5) is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history. This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court's membership. The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. (6) Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. Finally, as was detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of "mental decrepitude" on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers. (7) A regime that allows high government officials to exercise great power, totally unchecked, for periods of thirty to forty years, is essentially a relic of pre-democratic times. …