All would agree that the Justices of the Supreme Court of the United States collectively exercise enormous power. Only slightly less obvious is the fact that, given the frequency of five-to-four decisions, especially in the most important and controversial cases, each individual Justice is an important political actor. Writing half a century ago, Professor Frank opined that "the individual Supreme Court Justice probably has more actual power than any other individual in American public life except the President." (1) Some might dispute this precise assertion--observers have sometimes given the number two ranking to the Chairman of the Federal Reserve System, for example. (2) On the other hand, people with an interest in the law might argue that, after the President, the most important American decisionmaker over the past several years has been Justice Kennedy. And on the momentous day last summer when the Court upheld "Obamacare," no one doubted the importance of Chief Justice Roberts. Regardless of the precise pecking order, it is obvious that the identity of the individuals who sit on the Supreme Court is quite important to the country.
Justices, like other Article III federal judges, enjoy life tenure. (3) In this article, I contend that such life tenure is an anachronism that poses various problems, at least on the Supreme Court; that there is reason to believe that these problems are increasing; that life tenure is not justified by our legitimate concern for judicial independence; and that, therefore, either life tenure for Supreme Court Justices should be ended, or the adverse effects of life tenure be reduced by less drastic measures.
I. LIFE TENURE IS AN ANACHRONISM.
Unquestionably, life tenure is a uniquely powerful way of guaranteeing the independence of Supreme Court Justices from political pressures. But this benefit must be weighed against its extremely anti-democratic nature.
I seriously question that we would opt for life tenure for Justices if we were drafting our Constitution today. I am unaware of any other country that uses a system of life tenure for its judges. (4) Admittedly, foreign practice alone is not reason for us to abandon life tenure. But, particularly given that the American system of government is known and admired throughout the world, it is interesting that apparently no one else follows this practice.
At the time that the Constitution was drafted, it would have been easy to regard life tenure as a step forward. In the personal memory of the drafters, judges had served at the pleasure of the Crown, a practice wholly at odds with any notion of an independent judiciary. (5) The regard for judicial independence that led the Constitutional drafters to opt for life tenure was apparently persuasive in the states as well. Eight of the original thirteen states gave their judges life tenure, (6) as did eight of the eleven states admitted before 1830. (7) But as the Nineteenth Century wore on, concern about the anti-democratic nature of life tenure came to be seen as more important, with the result that state after state abandoned life tenure. By a fairly recent count, judges in forty-six states "face some form of electoral review." (8) Apparently only one state--Rhode Island--maintains a system of life tenure equivalent to that enjoyed by United States Supreme Court Justices. (9)
Consideration of the structure of the entire federal government suggests that more than a concern for judicial independence underlay the adoption of life tenure. Democratic self-government was a largely untested project, and the framers were treading lightly in all branches of government. In the executive, the President was not to be elected by the people. The electoral college arrangement allocated votes to the states, and the electors were to be "appoint[ed], in such Manner as the legislature thereof may direct." (10) Even assuming that the legislature opted for popular election, the people would be trusted only to the extent of allowing them to select the distinguished men of the various states who would, in turn, choose the President. …