Alternative career resolution II: changing the tenure of Supreme Court Justices.

• Author: Burbank, Stephen B.
• Position: 2005-2006 Symposium: The Chief Justice and the Institutional Judiciary

INTRODUCTION

A great deal has been written about proposals to change the tenure of Supreme Court Justices. Those proposals differ in numerous respects. Some would establish fixed terms, renewable or nonrenewable; others would mandate retirement at a certain age. Some proposed terms are long, others short. Some of the proposals would meld service on the Court with service on the lower federal courts, whether as an attempt to avoid the need for a constitutional amendment or a means to correct flaws the proponent perceives in the system of life tenure crafted by those who wrote the Constitution. The proposals that have received the most serious attention from lawmakers over time have involved constitutional amendments implementing mandatory retirement. (1) In contrast, the proposals that are currently receiving the most serious attention from the academic community involve a nonrenewable eighteen-year term, at the conclusion of which a Justice would have the option to remain an Article III judge, empowered to participate in the work of the lower federal courts and, according to at least one proposal, to continue to participate in some of the Supreme Court's judicial and nonjudicial work in certain circumstances. (2) Proponents of nonrenewable eighteen-year terms differ on the question whether the change could be implemented by statute.

Steven Calabresi and James Lindgren have made by far the most elaborate case for moving from life tenure to nonrenewable eighteen-year terms. They present a variety of data showing that in the period since 1970: (1) Justices have served far longer than the mean in the period prior to 1970 (26.1 years versus 14.9 years); (2) Justices have served to a much older mean age (79.5 versus 68.3); and (3) we have experienced both an increase in the mean interval between appointments (3 versus 1.91 years) and a disproportionate share of the longest intervals between appointments. (3) As a result, the authors argue, the Court, for which the appointment process is (in their view) the only plausibly effective check ensuring democratic accountability, does not receive regular refreshment drawing it closer to popular understandings of the Constitution; the incentive of Presidents to appoint younger people to the bench is enhanced (depriving the nation of older, perhaps smarter and wiser people); the appointment process has become contentious and politicized to the detriment of the institution; and the problem of Justices overstaying their time has increased in frequency, as has strategic partisan behavior of Justices in timing their retirements. (4)

Because the field of proposals is crowded, I will concentrate on the case that these and other authors have made to replace life tenure for Supreme Court Justices with nonrenewable eighteen-year terms. I do not intend to discuss the question whether, if our lawmakers deemed such a change desirable, they could implement it by statute as opposed to constitutional amendment. That question is neither uninteresting nor without difficulty. In the absence of unambiguous text or precedent in the form of court decisions, and given that "constitutional law" is not confined to court decisions, the answer to the constitutional question would turn on an (explicit or implicit) assessment of the policy implications of changing the status quo. This, in turn, would (or should) depend on a comparative assessment of the benefits and costs of the proposed alternative in light of the roles that the Supreme Court plays in our society.

It is easy to see how, so framed, and whether or not couched in the language of constitutional law, a scholarly debate about judicial tenure could be dominated by the kind of "epistemic shallowness" (5) for which law professors are infamous. Indeed, the work of many engaged in the debate is quite relentlessly normative and replete with unsupported causal assertions. (6) For that reason I thought it useful to explore the question whether proponents' assertions and predictions about political phenomena are supported by the theories or empirical evidence produced by those whose business it is to study political phenomena. More broadly, my goal in this Article is to begin to fill what I perceive to be both theoretical and evidentiary gaps. I seek understanding in the literatures of other disciplines, particularly political science, of whether there are serious problems warranting attention and whether nonrenewable eighteen-year terms would solve those problems (without creating other problems).

Approaching the subject from that perspective, I find that there is little evidence that life tenure on the Supreme Court, as it operates today, is responsible for some of the costs attributed to it or that the costs themselves are serious enough to warrant changing a basic structural arrangement at this time. These include those costs proponents of change associate with presidential incentives in making nominations, the behavior of the Justices in connection with retirement, and the contentiousness of the appointment process. The evidence also suggests to me that, in historical perspective, the problem of Justices remaining beyond the time they are up to the job is less serious than it was in prior periods, before Congress enacted adequate provisions for retirement. (7)

I then turn to arguments that the current system of life tenure for Supreme Court Justices renders them insufficiently accountable to the public, threatening democratic legitimacy by distancing the Justices from popular understandings of constitutional meaning. I argue that the accountability critique is impoverished because it focuses exclusively on the appointment process and treats judicial independence and judicial accountability as both dichotomous and monolithic. Exclusive attention to the appointment process obscures other executive and legislative powers that can render the Court accountable, together with the norms, customs, and dialogic processes that have developed in their shadow, as it obscures normative and empirical scholarship suggesting that the Court in fact never strays very far or for very long from majority preferences. The isolation of judicial independence from judicial accountability enables proponents to invoke comparative data that tell us very little, and it may also cause them to treat less seriously than they should the potential costs that frequent and predictable appointments under their system might entail. (8)

In examining proponents' claims concerning democratic legitimacy, I review the political science literature about the public's knowledge of the Court and its decisions and how that knowledge translates into support (or lack of it). I find little basis to believe that the public at large has understandings of constitutional meaning, as opposed to results in cases that are controversial or highly salient for some reason, let alone understandings of competing interpretive approaches. I also find no credible evidence that the Court today lacks public support to an extent that should concern us; indeed, it enjoys greater support than Congress. (9)

Finally, I seek in the interest group literature clues to the sort of environment in which frequent and predictable appointments would likely play out. The evidence suggests that, far from reducing the contentiousness of the process, a system of frequent and predictable appointments might reinforce the worst tendencies of modern politics, causing a crisis in democratic legitimacy by shining more light more frequently on the Court, and by draping the Court's work in the garb of the ordinary politics of which it would be seen to be a part. The result, in other words, might be a quantum and quality of democratic accountability, shaped by the incentives and tactics of interest groups aligned with political parties, that could swamp the putative independence augured by nonrenewable eighteen-year terms viewed in isolation. (10)

1. THE PUTATIVE COSTS OF LIFE TENURE: PRESIDENTIAL INCENTIVES, MENTAL DECREPITUDE, AND STRATEGIC PARTISAN RETIREMENT

   Calabresi and Lindgren are to be applauded for gathering and manipulating empirical data in order to quantify the perceived problems to which they respond. Like many other proponents of change, however, they seem fixated on the current institution--at the end of its existence as a "natural court" (11)--and on incentives that may seem irresistible given the current political climate Lacking historical and institutional perspective, the enterprise has the air of a self-fulfilling prophecy.

   What, for instance, should we make of Calabresi and Lindgren's claim that their proposal "will eliminate the incentive Presidents currently have to find candidates who are even younger" (12) or of others' claim that the "problem with the current nomination system is that youth has been elevated from one factor among many to one of the most important considerations." (13) The average age at appointment has remained remarkably uniform over time (at around fifty-three). (14) The basic incentive to appoint younger people is life tenure. As Ward Farnsworth suggests, logically, one would expect greater attention to age at appointment when life expectancies are short; (15) empirical data support that logical supposition. (16) Given numerous long tenures prior to 1970 and the ages of recent nominees, it seems implausible that the perceived lengthening tenure since then has had a significant impact on appointments, when compared, for instance, to a particular President's agenda in making appointments. (17) But we need not speculate; the question should be amenable to empirical investigation.

   Before doing such work, however, one should perhaps seek perspective on the phenomenon of "lengthening tenure." Working with medians rather than means, (18) Kevin McGuire finds that "the tenure of the Justices has been quite stable over time," (19) that the median age of the current Justices (sixty-nine...