The ideological stakes of eliminating life tenure.

• Author: Farnsworth, Ward
• Position: Response to article by Steven G. Calabresi and James Lindgren in this issue, p. 769

Professors Calabresi and Lindgren have written the strongest attack yet on life tenure for Supreme Court Justices. I congratulate them on their effort and am grateful for the chance to offer some comments on it. I saw a previous draft of their paper before publishing my article taking a different view in the University of Illinois Law Review, (1) so in that piece I was able to discuss most of their arguments; here I will briefly treat just a few additional issues. Mostly I wish to talk about some ideological implications and consequences of the authors' proposals that they do not emphasize. I also will offer a few words in reply to a point on which they take issue with my prior article.

1. IDEOLOGICAL CONSEQUENCES

   First, the authors say that theirs is a "nonpartisan" proposal. (2) That term, and its fit to their plan, calls for some reflection. Let us start by distinguishing between two sorts of stakes in efforts to get rid of life tenure: the ideological and the non-ideological. The non-ideological stakes are things that people with different political priors nevertheless can agree about. Everyone can agree that mental decrepitude on the Court is a bad thing; nobody is for it. The same goes, I think, for the uneven distribution of appointments to Presidents, or for possibilities of strategic retirement. Nobody praises these consequences of life tenure or would be sorry to see them go. They are costs of our current regime, and the question is simply whether one would rather bear them than switch to an alternative rule with other tradeoffs.

   The ideological arguments for abolishing life tenure are different; they involve the Court's role in public life. When someone says that the Court has become too unaccountable, or that life tenure makes the Justices arrogant, or that it encourages judicial activism, these are ideological claims: their appeal will depend on the listener's satisfaction with the Court's current performance and predictions about how the substance of its output would change under a new rule to govern turnover. These disputes generally have a zero-sum character. If some given reform makes one audience happy because it causes the Court to decide cases differently--especially those cases that cause the frequent concerns about the Court's "activism"--it is likely to make another audience comparably unhappy. The different reactions of the audiences are likely to track their political commitments.

   The advocates of fixed terms differ in the emphasis they give to these two sorts of stakes. Professor Oliver makes his case only on non-ideological grounds. (3) Others, such as Professor Prakash, seem mostly focused on the ideological side: he wants a more "populist" Supreme Court, and thinks that abolishing life tenure will help get us there. (4) Still other commentators draw on both sorts of arguments; that is Calabresi and Lindgren's approach. They claim, for example, that fixed terms will help relieve the problem of mental decrepitude (5) (a non-ideological point) and that they also will help promote originalism (an ideological or "partisan" point). (6) I suppose one could try to avoid this conclusion by saying there is nothing partisan about originalism--that it's merely a preference for the rule of law--but that is the sort of argument which appeals only to those already converted to the cause.

   I think the "nonpartisan" label is best reserved for proposals that will create no losers predictably identifiable by their politics. It strikes me as quite strained to declare a proposal "nonpartisan" just because it is supported by some academics whose politics vary. Life tenure is a complicated issue involving many different trade-offs, and people take positions on it for all sorts of reasons. Some academics might support its abolition despite the partisan consequences they think the proposal would have, concluding that fixed terms have other offsetting advantages. Nor does "nonpartisan" seem very interesting if it is merely a claim by the authors that their own interest in the proposal arises from its non-zero-sum features--the ones that everyone is likely to consider good. For why would anyone care what the authors' own motives are? Consequences are what count; whatever Calabresi and Lindgren's motives might be, they believe their proposal will have some consequences that would be certain to provoke very different reactions among different sorts of partisans.

   I emphasize all this not because the semantics are of any great interest. The authors' use of the term "nonpartisan" mildly offends my taste for truth in advertising, but so do many other descriptions of academic projects. The reason I fuss about the point here is that the ideological stakes of this debate may be quite high, and are too easily lost in the long discussions of the other parts of the question; the measurement of the ideological stakes, and the use of structural reform to advance them, both raise interesting questions that are of some general interest.

   What are the ideological effects of life tenure? Nobody knows for sure, and the empirical void is curious. When I have had the pleasure of debating Professor Calabresi on these issues in live settings, he has been more emphatic than he allows in his article that of course there is a trend of Justices becoming more liberal as they serve longer (and, perhaps, as they grow older). He hopes and expects fixed terms to help curb this tendency. Many other conservative theorists likewise feel sure that life tenure is at least partly to blame for decisions they dislike. (7) Yet if it...