Old People and Good Behavior

By Powe, L. A., Jr. | Constitutional Commentary, Summer 1995 | Go to article overview

Old People and Good Behavior


Powe, L. A., Jr., Constitutional Commentary


Just what was wrong with the Nine Old Men? Their votes? Not taken as a whole, for those included Brandeis.(1) That their judicial philosophies were without redeeming social value? Again it can't be, for those philosophies ran the gamut from Brandeis to Hughes to Sutherland to McReynolds. No, what was wrong with them is that they were old, that they had not left the Court, and that they intended to outlast the new political order. Butler, the youngest of the group over seventy, had been born the year after Appomattox. Their understanding of government and economic collapse stemmed from their experiences as adults with the depression of 1893.(2)

If the Court was aged in 1936, it was more so in 1984, with five Justices having been born during the Roosevelt Administration--that's Theodore. Brennan, Burger, Powell, Marshall and Blackmun knew radio via the crystal set(3) and reached adulthood during either the Coolidge or Hoover Administrations. As the oldest quintet in Supreme Court history, their votes could have (had they not split) determined the Constitutional rules and aspirations for late twentieth century America. What allegedly rational system could place individuals of that age in positions of influence and authority? The answer, straight from the text, is a Constitution that allows judges to continue until they are ready for their graves.

Life tenure (or "during good Behavior" as Article III words it) creates the real possibility of imitating a society like China, where power is wielded by the oldest among it. Even if their minds are every bit as good as they were years before when they were appointed,(4) there is no good reason in a democracy to vest so much power in a people who are so close to departing the society.

We cannot hold the Framers entirely to blame. Life tenure was the way they defined an independent judiciary (which is the correct objective). For their generation, life expectancy was shorter, and people who viewed public service as a job(5) rather than an opportunity, internalized their own term limits by willingly retiring from public life. Even for the initial generations, however, the Supreme Court was different. Of the first sixteen appointees to the Court (this includes Jefferson's), fully ten stayed on the bench until death. Excluding the flukes of Goldberg and Fortas, the two shortest tenures since the Kennedy presidency were those of Burger and Powell, each of whom stayed until he was almost 80.

No wonder; today Justices enjoy a job that has good pay, high prestige, manageable hours, great vacation opportunities, and no heavy lifting,(6) so they can last longer and longer. And as they age, their formative experiences grow ever more distant from those of the 250,000,000 people whose Constitution they interpret and whose lives they periodically affect. Their age and their views (whether good or not)(7) are costs that we the people ought not and need not bear in order to maintain an independent judiciary. Life tenure is the Framers' greatest lasting mistake.(8)

There are at least three interrelated problems with life tenure. First, in Sandy Levinson's words, Justices "have stayed too long at the fair."(9) Their formative adult experiences took place forty years earlier in a society often unrecognizable in the present. It is one thing to elect such individuals to govern, it is another to have them govern because elected individuals approved of them twenty or thirty years earlier. Second, the political order that created their ascendancy (and for which they may have some fond feelings) may also be receding into history. Yet like the Four Horsemen or, alas, Brennan and Marshall, they try to live and serve until that old political order can somehow restore itself (and therefore replace them with younger lawyers of similar ideology). Third, as shown by the Reagan and Bush Administrations, there are incentives for a current governing coalition to appoint youthful justices such that those appointees will have at least thirty probable years of service on the Court. …

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