Supreme Court not for life? Beware perils to its independence

The idea of limiting the term of Supreme Court justices to a fixed term, and not life, has been revived again after the brutal confirmation battle for Justice Brett Kavanaugh, and both liberal and conservative members of the Senate Judiciary Committee appear to be intrigued by the idea. Polling shows support for limiting justices’ terms, and it has garnered support from sources as diverse as Norm Ornstein of the American Enterprise Institute (AEI) and Erwin Chemerinsky of Berkeley Law. Still, senators should proceed cautiously, since proponents of this idea often have ulterior, instrumental motives.  

The Framers wrote into the Constitution’s Article III that a Supreme Court Justice serves life tenure “on good behavior,” which generally means that only crimes of moral turpitude can lead to impeachment. The Framers’ intent was to guarantee judges independence, enabling them to speak their minds freely, administer justice without fear or favor, and provide necessary checks on the other branches of government. Life tenure insulates the justices from pressure by the political branches. However, what was life tenure in 1790, when life expectancy for white males (the only Americans then eligible for Supreme Court appointment) was under 40 — far different than it is today.   

{mosads}Seizing on that, presidents increasingly are nominating justices at a younger and younger age, in an effort to leave their mark on the court for as long as possible. Look at recent picks: Neil Gorsuch was selected at age 49; Brett Kavanaugh, at age 53. President Obama’s Supreme Court picks were Sonia Sotomayor at age 54, and Elena Kagan at age 50. In so doing, vetters acting on behalf of an administration may bypass experienced, qualified judges who would make great contributions to justice and our nation. In fact, Merrick Garland — whose Supreme Court nomination by Obama in 2016, after the death of Antonin Scalia, failed in the face of obstruction by Republican senators — was a bit of a surprise to court-watchers who did not expect Obama to nominate a judge over 60 years old.

That does not mean that measures that would limit a Supreme Court justice’s term are necessarily a bad thing. If presidents were to select justices for a single 18- or 20-year term, the value of independence still would be preserved, but the length of a justice’s service would not depend on genetic vagaries such as longevity or good health and stamina into old age. A president could choose a justice based on youth and brilliance, or experience and wisdom (or ideally, both).

The long length of the justice’s term would be important not only for maintaining judicial independence from other branches of government, but also to prevent them from giving any thought to their post-court career in making rulings. Like the presidency, Supreme Court justice needs to remain a last, best job. Justice O’Connor’s post-retirement devotion to civic education models the type of life that would be appropriate under a new system.

Critically, if such a change were to be undertaken, its application should be prospective only. It should not apply to any justice sitting now or selected before the Constitutional amendment was made. In other words, for those hoping to be relieved of a particular justice they disfavor, this change would not make a speck of difference.

One thing that bedevils this change is that it would require an amendment to the U.S. Constitution, always a tricky thing to accomplish. Alternatively, rather than retiring at the end of the limited term, a “senior justice” might step back to service on cases in the federal circuit courts, as retired justices do now; they simply no longer would hear Supreme Court cases. While it is not completely clear as a matter of constitutional law, if this were the option selected, the change, in theory, might not require constitutional enactment, but could be made by congressional enactment.

{mossecondads}Thirty-two states and the District of Columbia have mandatory retirement ages for judges, according to the National Center for State Courts. These rules are set by state constitutions, not the U.S. Constitution, but a comparison is instructive. In a variety of initiatives since 2010, agendas driven by populist groups in Kansas, Colorado and North Carolina, among other states, have attempted to manipulate retirement ages or expand the size of the state Supreme Court to alter its ideological balance. For example, in 2013, Kansas legislators proposed to lower the age limit for appellate judges from 75 to 65, the lowest in the nation, to give the legislature greater power over appellate courts.

Looking beyond the United States, the nationalist government in Poland recently tried to clear its bench of stubbornly rule-oriented judges by lowering the retirement age, sparking Poles to take to the street en masse. Former prime minister Jarosław Kaczyński, the leader of the Law and Justice party, backed off in November only after an October ruling by the European Court of Justice ordering Poland to suspend the measures and reinstate the judges who had lost their jobs.

Such efforts to manipulate structural elements are why some of the proposals being floated now are troubling. A proposal by the nonpartisan grassroots group Fix the Court would not only provide for an 18-year term for justices but would permit presidents to appoint a new justice every two years. The result of a proposal such as this would, in the short term at least, be court-packing, similar to what President Roosevelt attempted in the 1930s when he was unhappy with rulings by the Lochner-era justices.

We should be wary of any effort to change the structure of a constitutional court to affect outcomes unless it leaves untouched the size of a court and its existing composition — no curtailment of tenure of current justices and no dilution of their votes allowed. The independence of the Supreme Court is a jewel of our rule of law, as Justice William Rehnquist once observed. Any changes that have even a whiff of impinging on it should be carefully undertaken. 

Meryl Justin Chertoff is executive director of the Aspen Institute Justice and Society Program and an adjunct professor of law at Georgetown University Law Center.