If high court vacancies were more frequent, confirmation battles wouldn't be so apocalyptic.
RUTH BADER GINSBURG had every right to remain on the Supreme Court for as long as she wished. The Constitution grants unlimited tenure to Supreme Court justices, and Ginsburg was under no legal obligation to step down, not even in her late 80s, after she had been stricken with repeated bouts of cancer. Her work ethic was beyond reproach, but her inability to relinquish power meant that her death left the court with an ill-timed vacancy — and the nation poised for yet another toxic firestorm.
There have always been justices who stayed on the court too long. Many clung to the job when it was apparent that their mental powers were failing. Others refused to retire despite reaching advanced old age with its inevitable frailties and diminished productivity.
This wasn't what the Constitution's Framers intended when they provided that the justices "shall hold their Offices during good Behavior." Their concern was to shelter the courts from intimidation by the political branches and the pressure of public opinion. If judges knew that their jobs were safe no matter what, they would be likelier to decide cases without fear of crossing powerful politicians or incurring populist anger.
The Framers believed such protection necessary because they expected the judiciary to exercise less clout than the executive and the legislature — to be "the weakest of the three departments of power," in Alexander Hamilton's words. Life tenure would ensure judges' independence, and keep them from "being overpowered, awed, or influenced" by outsiders.
But the Framers never foresaw how formidable the judiciary would become. Once the Supreme Court claimed the right to strike down laws it deemed unconstitutional, and to extrapolate new rights from the Constitution's text, it went from being the weakest branch to the strongest. Today, every important political controversy eventually comes before the high court. Abortion, racial preferences, the death penalty, voting rights, free speech, even the outcome of elections — when it comes to the issues about which Americans are most passionate, nine Supreme Court justices generally get the final word. They shape national policy more enduringly than Congress and the president. Their authority is immense, and it's theirs for as long as they cling to it.
Which is much longer than it used to be, thanks to something else the Framers didn't anticipate.
When the Constitution was ratified, a man who reached 40 could expect to live to his mid-60s. Today, the average 40-year-old American male will live to be 79; the average 40-year-old woman lives even longer. As lifespans have lengthened, so have years on the bench. The typical tenure for Supreme Court justices in the 19th and early 20th centuries was around 15 years. But the average justice leaving the court since 1975 has served 27 years.
A justice confirmed today is apt to wield the vast power that comes with the job for the next three decades. With vacancies so rare, with the stakes so high, is it surprising that confirmation battles seem apocalyptic?
This can't go on.
Life tenure for Supreme Court justices, far from serving a legitimate function, only fuels society's polarized bitterness. For years, scholars have suggested it be abolished, by means of either a fixed retirement age, or a fixed term of years. Nearly a century ago, former Justice Charles Evans Hughes marveled at "how reluctant aged judges are to retire," and recommended mandatory retirement at 75. Retirement ages for judges are common at the state level; Massachusetts judges, for example, must step down at age 70.
The typical tenure for Supreme Court justices in the 19th and early 20th centuries was around 15 years. But justices appointed to the court today are apt to remain on the bench for three decades.
Even wiser than a specific retirement age would be a fix that scores of experts and reformers have long supported: Limit the terms of Supreme Court justices. The most common proposal is for staggered terms of 18 years, with a new justice nominated every other year. That would give justices plenty of time to make their mark, while guaranteeing that every president would appoint multiple justices. SCOTUS vacancies would become routine, not once-in-a-blue-moon rarities to be whipped up into pitched battles. The court's ideological composition would shift as the nation's shifted. And justices would no longer feel pressured to hang on until a president of their party was in power.
This isn't a partisan idea. Future Chief Justice John Roberts praised it as a White House lawyer in 1983. Justice Stephen Breyer endorsed it as recently as 2016: "I do think that if there were a long term [of] 18, 20 years, something like that, and it was fixed — I would say that was fine," Breyer told an interviewer. "In fact, it'd make my life a lot simpler."
Americans agree. Numerous polls in recent years show widespread support across party lines for limiting Supreme Court justices's terms. There aren't many issues on which Americans still see eye to eye, but this appears to be one of them. We can all see that life tenure isn't working. It's long past time we replaced it with something better.
(Jeff Jacoby is a columnist for The Boston Globe).
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