Old people and good behavior.

AuthorPowe, L.A., Jr.
PositionLife tenure on the US Supreme Court - Constitutional Stupidities: A Symposium

Just what was wrong with the Nine Old Men? Their votes? Not taken as a whole, for those included Brandeis.(1) That their judicial philosophies were without redeeming social value? Again it can't be, for those philosophies ran the gamut from Brandeis to Hughes to Sutherland to McReynolds. No, what was wrong with them is that they were old, that they had not left the Court, and that they intended to outlast the new political order. Butler, the youngest of the group over seventy, had been born the year after Appomattox. Their understanding of government and economic collapse stemmed from their experiences as adults with the depression of 1893.(2)

If the Court was aged in 1936, it was more so in 1984, with five Justices having been born during the Roosevelt Administration--that's Theodore. Brennan, Burger, Powell, Marshall and Blackmun knew radio via the crystal set(3) and reached adulthood during either the Coolidge or Hoover Administrations. As the oldest quintet in Supreme Court history, their votes could have (had they not split) determined the Constitutional rules and aspirations for late twentieth century America. What allegedly rational system could place individuals of that age in positions of influence and authority? The answer, straight from the text, is a Constitution that allows judges to continue until they are ready for their graves.

Life tenure (or "during good Behavior" as Article III words it) creates the real possibility of imitating a society like China, where power is wielded by the oldest among it. Even if their minds are every bit as good as they were years before when they were appointed,(4) there is no good reason in a democracy to vest so much power in a people who are so close to departing the society.

We cannot hold the Framers entirely to blame. Life tenure was the way they defined an independent judiciary (which is the correct objective). For their generation, life expectancy was shorter, and people who viewed public service as a job(5) rather than an opportunity, internalized their own term limits by willingly retiring from public life. Even for the initial generations, however, the Supreme Court was different. Of the first sixteen appointees to the Court (this includes Jefferson's), fully ten stayed on the bench until death. Excluding the flukes of Goldberg and Fortas, the two shortest tenures since the Kennedy presidency were those of Burger and Powell, each of whom stayed until he was almost 80.

No wonder; today...

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