RUTH BADER GINSBURG, who turned 80 in March, is the oldest justice on the US Supreme Court. Though the high court's leading liberal says her health is fine, there are signs that age may be taking its toll. She has dozed on the bench during oral argument, and has been hospitalized after experiencing faintness and low blood pressure. In early May, for the second time in a year, she fell at home and broke two ribs, necessitating weeks of convalescence and pain medication. More seriously, Ginsburg has twice been diagnosed with cancer. She underwent surgery, followed by radiation and chemotherapy, for colon cancer in 1999; she was operated on again for early stage pancreatic cancer in 2009.
Not surprisingly, some on the left have been urging Ginsburg to retire. That would give President Obama the opportunity to name her successor — presumably a much younger liberal, who would likely be a reliably left-leaning voice on the court for decades to come. But Ginsburg says she's not going anywhere. She told Reuters last week that she feels strong and energized, and called being a justice "the best job in the world for a lawyer." Ginsburg used to say her goal was to match the 23-year tenure of Justice Louis Brandeis; now she points to a new "model" in her former colleague John Paul Stevens, who retired in 2010 at age 90, after nearly 35 years on the court.
Like all federal judges, Ginsburg has life tenure, and she is perfectly entitled to shrug off the pressure to leave. So was former Chief Justice William Rehnquist, who also announced when he was 80 that he had no plans to stop working and wanted to "put to the rest the speculation" that he might step down. Two months later Rehnquist died of thyroid cancer. He had been on the Supreme Court for 33 years and 8 months, longer than all but seven of the 112 justices in the court's history.
The framers of the Constitution invested Supreme Court justices with lifetime appointments in the belief that it was the most effective way to protect judicial independence from undue political pressure. What worried them, as Alexander Hamilton explained in Federalist No. 78, was that of the three branches of the federal government, "the judiciary is beyond comparison the weakest." Because of its "natural feebleness," they feared the Supreme Court would be "in continual jeopardy of being overpowered, awed, or influenced" by Congress and the president. To ensure the court's impartiality and resolve, the framers decided, life tenure was "the best expedient which can be devised."
That may have been a compelling argument in 1789, long before the Supreme Court acquired the power of judicial review — the authority to strike down laws as unconstitutional, and to give constitutional weight to rights not actually mentioned in the Constitution. Today, far from being the government's most feeble branch, the Supreme Court is arguably the most powerful. It is certainly the most autocratic — not what the drafters of the Constitution, always concerned to disperse and restrain political power, envisioned.
Alexander Hamilton expected the Supreme Court to be the "least dangerous" branch of the federal government. Life tenure for federal judges, he argued, would counteract the judiciary's "natural feebleness."
Nor could they have envisioned a court on which justices would routinely sit for 20 or 30 years. Well into the 20th century, the average tenure of Supreme Court justices was about 15 years. The average tenure of justices leaving the court since 1971, however, has surpassed 26 years. The court's youngest justice, Elena Kagan, succeeded Stevens three years ago. If she stays on the bench until she reaches the age at which her predecessor retired, she will be wielding immense power until the year 2050. Rotation in office — infusions of new blood, new thinking, new energy — is critical for the health of any democratic body. But life tenure plus dramatically lengthened life expectancy has made the Supreme Court ever more unaccountable, unreasonable — and geriatric.
Has all this given us a judicial branch insulated from politics? Hardly. Supreme Court confirmation battles are more politicized than ever. Presidential and Senate candidates are grilled about judicial "litmus tests." Sitting justices like Ginsburg find themselves publicly exhorted to resign for crassly political reasons.
Worst of all, Americans overwhelmingly doubt that Supreme Court decisions are based on strict legal principles. A recent New York Times/CBS poll finds that just 20 percent of the public believes the justices rule "without regard to their own personal or political views."
May Ginsburg and all her colleagues be blessed with long and healthy lives, but life tenure for Supreme Court justices, it's increasingly clear, is an idea whose time has come and gone.
(Jeff Jacoby is a columnist for The Boston Globe.)
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