Assessing and addressing the problems caused by life tenure on the Supreme Court.

• Author: Oliver, Philip D.

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.

1. 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. (11) In the past two centuries, political and legal changes have rendered the electoral college merely a quaint way of counting the popular vote. (12)

   Limited democracy is also apparent in the legislative branch. While the House of Representatives has always been popularly elected, the Senate--which is, it should be noted, the more powerful body (13)--is another matter. For over a century, Senators were chosen by state legislatures, until 1913, when the increased taste for popular sovereignty led to adoption of the Seventeenth Amendment.

   While other branches of the federal government have become more democratic since the Constitution was drafted, the judiciary has, if anything, become less so. The only real check on the power of the judiciary provided by the Constitution is the power of impeachment, (14) but no Justice has ever been removed from office. Indeed, over two hundred years ago, President Jefferson came to the conclusion that the impeachment power was a "scarecrow." (15)

   In every aspect of government, a balance must be struck between two values, both of which are desirable. First, we would prefer to provide policymakers sufficient protection from political pressures in order that they be able to do what they think best. But this argument can carry us too far. Rule by an enlightened despot can be viewed as an ideal governmental system, because the despot can make desirable changes that might be blocked by a political system more responsive to popular will. (16) However, a second value, fundamental from our founding, is that "Governments are instituted among Men. deriving their just powers from the consent of the governed." (17) The system of life tenure finds strong support from the first principle, but gives short shrift to the second. This raises the following question: Given the undemocratic nature of life tenure, how much protection of the Court from political influence is desirable?

2. HOW MUCH INDEPENDENCE FROM THE POLITICAL PROCESS?

   The makeup of the Supreme Court is determined by the political process. If we truly find impingement of the political process on the proper functioning of the Supreme Court to be corrupting, such political involvement could be avoided. For example, if a vacancy on the Court arose, the existing Justices--individuals whom defenders of life tenure apparently trust to act independently of the political process--could select a new Justice, rather than leaving that important decision to the crass politicians in the White House and the Senate. The remaining Justices could act much as the College of Cardinals in selecting a new Pope. Although judicial independence would be quite well vindicated--the Court could make its important decisions almost wholly independent from the political processes that otherwise govern the country--I suggest that few defenders of life tenure would want to carry things quite so far. We all desire judicial independence, but we also desire a Court that is ultimately shaped by the political processes of the country. The question is how we achieve an appropriate balance. Those who simply repeat the mantra that we desire "an independent judiciary" avoid the real issue.

   Nonetheless, I do not merely concede but emphatically endorse the idea that judicial independence is an important value. If the only considerations were judicial independence versus desirability of governing by consent of the governed, I would regard the question of life tenure as close. Unfortunately, life tenure on the Supreme Court carries with it several problems that even defenders of judicial independence should find troubling. A lengthy but fixed term could provide substantial judicial independence while avoiding or lessening these problems.

3. PERNICIOUS EFFECTS OF LIFE TENURE

   Life tenure carries one very serious, and unavoidable, problem, which I believe most defenders of life tenure would concede to be a problem. In addition, there are a number of lesser consequences that, in my view, constitute additional reasons to be concerned about life tenure.

   1. Justices Time Their Retirements to Assure the Appointment of Like-Minded Replacements.

      "Life tenure" usually does not mean that Justices remain on the Court until death, of course. Most Justices choose to retire at some point. But, unlike most of us who are likely to base the timing of the decision to retire almost entirely on personal factors, Justices may well time their retirement decisions to increase the likelihood that their replacements on the Court will continue, in a general sense, to represent their viewpoints. I do not wish to overstate this factor. It seems reasonable to assume that most Justices will stay on the Court as long as they find the work rewarding, and retire shortly thereafter. (Justices need not consider the need for earnings, no doubt the overriding factor in the timing of retirement for most people, because they receive their salary for life. (18)) But many retirement decisions based entirely on personal factors might reasonably be made at any point over a period of a few years. If a Justice might choose, for personal reasons, to retire at some point during a several-year period, there seems to be every reason to believe that the Justice would prefer to time his (19) departure to coincide with the administration of a President likely to appoint a new Justice who would, in general terms, share the judicial philosophy of the outgoing Justice. If the Justice does not die unexpectedly, or suffer a serious and sudden decline that cannot be ignored, timing retirement with this consideration is mind is likely to be successful. Only once in the past sixty years has one party held the White House for more than eight years at a stretch. This suggests that a Justice with any skill whatever at reading the political tea leaves is likely to be able, by moving up or...