On March 25th, 2009, Linda Greenhouse, a Pulitzer Prize-winning reporter for the New York Times spoke at a debate at the Yale Political Union in favor of the resolution "End Life Tenure for Supreme Court Justices." After two hours of debate, the resolution failed by a vote of 20 in favor, 32 against, and six abstaining. Full minutes of debate can be found at here. Below are Ms. Greenhouse's remarks, as well as two student speeches.
Article III of the Constitution provides: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior . . ."
Although one might debate the point as a matter of linguistics, "during good Behavior" has long been understood to mean service for life - subject to impeachment and removal for high crimes and misdemeanors. That seems to have been the intention of the Constitution's Framers - at least, those Framers who prevailed on the question of life tenure for judges. Thomas Jefferson opposed life tenure and argued for renewable terms of four to six years.
So what did the Framers really want? Clearly, they attached a high value to the independence of the judiciary. They did not want judges to have to look over their shoulders and fear retaliation for their decisions. Note that Article III serves this goal by also protecting federal judges against having their salary reduced while in office.
But did the Framers want what we have today?
• Five Supreme Court justices who are 70 or older, and a sixth who turns 70 in a few months.
• Justices in the last quarter-century serving an average of more than 26 years, 10 years longer than justices served in the first half of the 20th Century. To use a different time frame - between 1789 and 1970, justices served an average of 15 years. Since 1970, it has grown to 26 years. The average life expectancy, of course, has grown as well: from 47 years in 1900 to 77 years today. Since 1970, justices have left the bench through retirement or death at an average age of 78.7 years, compared with 68.5 years for the preceding 200 years.
• Supreme Court vacancies occurring so infrequently and so randomly that each one becomes a galvanizing political event. President Jimmy Carter had no vacancies during his four years in office, which meant that there was no Democratic appointee to the Supreme Court between Thurgood Marshall, appointed by LBJ in 1967, and Ruth Bader Ginsburg, appointed by Bill Clinton in 1993 - a span of 26 years. And the Court recently went 11 years without a vacancy - the longest period without turnover in the Court's membership since the 1820's - from 1994, when Justice Harry Blackmun retired after 24 years at the age of 85, and 2005, when Chief Justice Rehnquist died in office at the age of 80 after nearly 34 years. He had been terminally ill for nearly a year, missed months of the term, had to breathe through a hole in his throat and take food through a tube, but refused to retire.
So we have to ask ourselves: is this what the Framers had in mind?
I submit that it is not, and that it is time for a change. There is no reason why we can't both honor the Framers' desire to protect judicial independence - a goal I believe we all share - without continuing to burden the country's political system with life tenure for Supreme Court justices.
In trying to get your attention by mentioning a few of the problems connected with life tenure, I have only scratched the surface.
Let me elaborate.
Life tenure has brought about unfortunate strategic behavior by both Presidents and justices. Presidents try to maximize their ability to influence the future by appointing young people to the Supreme Court. Clarence Thomas was only 43. William Rehnquist was 47. John Roberts, at 50, was the youngest person appointed Chief Justice since John Marshall, who was 45 when John Adams appointed him in 1801. Chief Justice Roberts is likely to still be serving when today's Yale College students are well into middle age.
Republicans seem more susceptible to the desire to fill the Court with young justices. The average age of the last five Republican appointees is 50, compared to the last five justices names by Democratic presidents, who averaged 56 ½. Of course, to find the last five Republican appointees, you only have to go back to Anthony Kennedy, who joined the Court in 1988 at the age of 51. To find the last five Democratic appointees, you have to go all the way back to Arthur Goldberg, who joined the Court at age 54 in 1962. The culture surrounding Supreme Court nominations has changed since the 1960's.
And justices also behave strategically, timing their retirements for the incumbency of presidents who will appoint like-minded successors. Both Byron White and Harry Blackmun hung on until Bill Clinton was elected. You could call this a way of justices picking their own successors.
Clearly, life tenure on the Supreme Court is distorting our domestic politics. The country is now about to go through the ritual of holding its breath to see whether any of the incumbent justices will retire at the end of the current term and give President Obama a vacancy. Conventional wisdom says that if anyone retires, it will be one of the liberal justices. Conventional wisdom is probably right, and that's too bad. It makes justices look political and diminishes respect for the judiciary. Diminished public regard for the judiciary is over the long term a threat to judicial independence - the very outcome that the Framers were trying to avoid.
Beyond statistics and politics, what are some other problems with life tenure?
One is simply that justices who have spent decades in the Supreme Court's ivory tower become out of touch with the cultural currents of the society. The Framers' expectation that placing the appointment process in the political braches would result in the regular "instillation of public values" - to use an academic phrase - in the judiciary is frustrated. That wouldn't matter, except that the Court regularly decides major issues affecting how Americans live their lives. When the Court ruled in Bowers v. Hardwick, in 1986, that gay men and lesbians did not have a constitutional right to privacy for their intimate acts, Justice Lewis Powell is reported to have said to a closeted gay law clerk: "I don't believe I've ever met a homosexual." Justice Powell was then 78 years old and cast the deciding vote against the gay rights claim. When the Court had its first case about free speech on the Internet, none of the justices was familiar with the Internet, and the Library of Congress had to send someone over to the Court to show them what the Internet was. (It may be worth pointing out that only 13.5 percent of Americans between the ages of 70 and 74 are still in the labor force - compared with 2/3 of the Supreme Court.)
But even if justices did manage to keep up with broad cultural trends, they are less likely after decades on the Court to keep up with major new legal developments. New issues are always emerging that could not have been anticipated at a confirmation hearing years earlier or during the formative period of a nominee's legal education, years before that. The public is entitled to a regular infusion of members of the Supreme Court who are familiar with these emerging issues - the law and economics movement, to cite just one example. To the extent that the Court is seen as disconnected and out of touch, its legitimacy will erode.
This is especially a problem when justices go on the Court at young ages, before they have made a mark elsewhere in a major public career. The Supreme Court is not a good perch from which to learn about the world. Certainly the Framers expected that justices would be chosen from the front ranks of American public life, from among those who had engaged in "long and laborious study" to equip themselves for dealing with "the variety of controversies which grow out of the folly and wickedness of mankind," as Hamilton put it in Federalist Number 78.
The American constitutional system has, as we all know, been a beacon for the rest of the world. Democracies the world over have found much merit in our idea of a written constitution and of judicial review by judges whose independence is protected. So it is interesting to note that no other country has adopted life tenure for judges of its constitutional court. And no state has followed the federal model with the exception of Rhode Island. All these other jurisdictions, both internationally and among the various states, impose either term limits or age limits on their high-court judges. Post-apartheid South Africa, for example, whose constitution is regarded as a model -- derived from the best thinking of constitutional lawyers here and around the world -- has its constitutional court judges serve for a single 15-year term.
It is also worth noting that criticism of life tenure for the U.S. Supreme Court is completely bipartisan. Among its leading critics are professor Steven Calabresi, a founder of the Federalist Society, and Professor Sanford Levinson, a self-described liberal who says that life tenure has had "pernicious" effects and who includes a chapter about it in his recent book, which is entitled "Our Undemocratic Constitution: Where the Constitution Goes Wrong." Leading scholars across the spectrum have agreed that life tenure should be abolished. So anyone can agree with me without fear that they are signing up for any particular ideological agenda.
All this, of course, raises the question of what is to be done. Theoretically, the most straightforward solution would be to amend the Constitution to provide a term or years or an age limit. But amending the Constitution is an extremely arduous task with an uncertain outcome. As you know, it requires the vote of 2/3 of each House of Congress and ratification by ¾ of the state Legislatures. Amendments having to do with anything even remotely controversial are almost bound to fail.
So I endorse a version of a proposal now in circulation that would make the change by legislation rather than amendment. It would do this by keeping life tenure as a technical matter - in other words, no member of the Supreme Court would ever be required to leave it simply because of age or length of tenure. Rather, there would be an appointment every two years - so that every President would have two appointments during a four-year term. The Court would, obviously, grow (by the way, the number of justices is set by legislation, not the Constitution, which simply provides in bare-bones fashion that there shall be "one Supreme Court"). But only the nine most recently appointed justices would constitute the active Supreme Court. The others would continue to serve, at full salary, as senior justices. They would fill in for justices who were recused from a particular case and serve during vacancies on the Court. They could even sit on federal appeals courts, as Sandra Day O'Connor is doing during her retirement, and as senior federal judges do all the time. Even sitting Supreme Court justices are entitled to sit on other courts if they choose to. William Rehnquist gave himself some trial experience by sitting as a judge in a garden-variety criminal case in a federal district court in Virginia.
When this system - which would not affect any incumbent justice - is up and running, each new justice would serve an effective term of 18 years, which tends to be the recommendation of those who favor setting a term limit by constitutional amendment. There are more radical proposals out there, for federal judges who would rotate through the Supreme Court for periods of six months to a year, or for 5-year terms for those confirmed specifically to the Supreme Court. I will stick with 18 years. But our resolution does not call for any particular substitute for life tenure, so it is not necessary to propose or settle on one tonight. I simply offer this example, which has received a respectable reception in the legal academy, to show that there are alternatives to life tenure that are completely workable and achievable.
Think of the benefits - the President and voters would know that there would be two Supreme Court appointments in each presidential term - much as there was an average of a vacancy every two years between 1789 and 1970. Each vacancy would not have to become a pitched battle. Partisan warfare would become less of an ingredient in filling every vacancy. The problem of "hot spots" - Richard Nixon's four appointments in his first term - followed by dry spells - Jimmy Carter with none - would be avoided. The Court would get a regular and predictable infusion of new blood and new ideas. The whole process of retirement and replacement would become more transparent. And the Framers' cherished goal of judicial independence would not suffer a bit. After all, as the great majority of other jurisdictions have concluded, a fixed term insulates judges from political pressure just as much as a life term. We would get the benefits of judicial independence without the burdens that life tenure imposes on all of us. I urge the adoption of the resolution.
Geoffrey Shaw, a junior in the Independent Party, gave the first speech against the resolution.
Professor Greenhouse makes a proposal that is extremely reasonable, and that would probably do a lot of good. I would, however, like to suggest a small measure of caution when it comes to redesigning an institution that has served us well for more than two centuries. To start with, Professor Greenhouse's proposal seems unnecessary.
• We are told that fixed terms would prevent senile justices from serving. But the Justices are not senile, and there are pressures to force senile justices out.
• We are told that Justices are too old and "out of touch" with the contours of American society, as evidenced by Justice Powell's ignorance of homosexuality and the entire Court's ignorance of the Internet. But these are isolated incidents, and historically, the Court is remarkably in touch with American society. It matches the views of the electorate pretty well as is. (Whether this is a good thing is another question entirely...)
• We are told that Presidents have incentives to appoint younger judges to ensure a long term of service, while fixed term limits would allow older, more qualified people to be nominated. But there is no reason to believe that current justices are under-qualified. To the contrary: the justices appointed under the life tenure system are for the most part excellent. If Presidents were appointing incompetent 25 year-old nincompoops, it would be a different kettle of fish.
• We are told that Supreme Court vacancies are "huge political events," which is a terrible thing. But if Professor Greenhouse's proposal were adopted, the magnitude of the political event would be unlikely to decrease.
• We are told that some presidents get more appointments than others. For example, President Nixon got 4 appointments in a short period of time, while President Carter got no appointments at all. But as a historical matter, there hasn't been a systematic skew. The Court's jurisprudence has matched the political contours of the nation fairly well.
Besides the fact that fixing Supreme Court terms is unnecessary, such a change also has potential drawbacks. By regularizing the vacancies, this proposal would make Supreme Court appointments more routine. This would mean that judicial issues would be fair game in electoral politics even more than they are now.
It is inherently damaging to decide essentially judicial issues via the normal electoral process. Imagine these not-so-crazy political arguments: "We only need 2 more seats to overrule Lawrence v Texas. If we elect this guy, it'll be done!" "We only need one more seat to overrule Roe v. Wade. If we elect this candidate, it'll be done! There is no uncertainty: if we win this election, those awful cases will be overruled." That the vacancies are entirely predictable makes these arguments particularly attractive. Judicial issues become political issues.
This sort of thinking also makes it more likely that justices would be chosen on the basis of their political views on hot button issues than on the basis of their approach to the law, legal brilliance, or other relevant qualities. A seat on the Court would become just like any other government position--no longer a seat for extraordinary legal minds, but rather rewards for help in a campaign, service to a political party, and more.
Adam Stempel, a sophomore in the Party of the Left, gave the next speech in favor of the resolution.
America is becoming more progressive. To some it may seem to be happening too fast, and to others it may seem far too slow, but I believe that it is happening. States are beginning to legalize gay marriage and amend anti-discrimination law to include homosexuals. More women can have abortions without the fear of being ostracized by their communities. African-Americans can be elected to high national office, and some states have decriminalized the use of marijuana. Americans are on the whole more tolerant than they were 25 years ago, and far less prejudiced than they were in the 1950s. And this is a positive trend.
It is unproductive to treat the Supreme Court as if it were not at all a political entity. It is no longer the role of the Court to merely look at the Constitution and explain what it says in plain language. Some form or another of "judicial activism," for better or worse, has become standard in important cases. Justices will have opinions, and they are likely to express them. The question is what kind of opinions we want them to express.
The ideas of Americans change, and so should the jurisprudence. Limiting justices' terms to 18 years would allow their decisions to more accurately reflect the liberalizing attitudes of the time without changing the good things that make the Court independent.
This system would prevent reactionary judges from dominating the Court for decades. Roger Taney, author of the infamous Dred Scott decision, sat on the Court for nearly 30 years, shackling Americans to a racist and outdated set of laws for an entire generation.
Would this also mean that liberal judges with social progress first and foremost in their minds would be kicked off the, too? Of course. But I would easily prefer a fresh face with a fresh senate confirmation to the prospect of Clarence Thomas in his 35th year on the bench.
This change is not particularly radical. Justices on both the Left and the Right will be appointed. But for the really important progressive cultural shifts that do happen--blacks being viewed as people, women being viewed as citizens, blacks being integrated into society, and, as I am confident will happen, homosexuals being viewed as equal--I want to be absolutely sure that no two or three dinosaurs appointed by a President long past will stop the social triumphs of a nation.
If you don't approve of the Court keeping up with society, and you think that it as an institution must primarily stand against change, then keeping old people on until their deaths might be the right call. But for those of us who recognize the importance of tolerance and of moving forward, we have nothing to lose by eliminating life tenure of justices. And we have so much to gain--the possibility to free the Court from at least the worst excesses of irrelevance. This, for certain, is worth the cost of shaking things up a little.
It could be disputed, I suppose, whether America is actually making progress, and it certainly is disputed as to how political the Court should be, but I think the course of American history and the facts of the day bear me out. Again, I do not think the politicization of the Court is the best thing to happen to the country, but it has certainly happened and it seems unlikely to change, no matter how long the justices serve.
This proposal doesn't solve all the possible problems with the Supreme Court, but it allows us to look at this important institution in a new and more modern way. If we let history take its progressive-trending course, we can have more good (and less radical) change, and sooner. Livelihoods would be saved, tolerance would be promoted, and the justices of the Court would be less likely to cling to old and destructive ideas as they wither physically and mentally. To support ending life tenure for Supreme Court justices is to support progress.
More information on the Yale Political Union and its debates can be found at www.yale.edu/ypu.