Return to sender: responses to Professor Carrington et al. regarding four proposals for a Judiciary Act of 2009.

• Author: Dziengowski, David C.

INTRODUCTION

"Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence." (1)

At the conclusion of the American Revolution in 1783, the average human lifespan was about thirty-five years. (2) The Framers, dissatisfied with the Articles of Confederation, convened the Constitutional Convention in Philadelphia, Pennsylvania, on May 25, 1787. Article III of the resulting U.S. Constitution provided judges of the "supreme and inferior Courts" with presumptive life tenure. (3) Fast-forward more than two centuries. The average human lifespan in the United States is now over seventy-seven years. (4) Due in part to the increase in longevity, the average term of years a Supreme Court Justice serves is steadily rising. On average, Supreme Court Justices now serve just over twenty-six years on the bench. (5) Proponents of judicial reform contend that this increase in tenure has caused appointments to the bench to become irregular and rare. (6) For example, President Nixon made four appointments to the Court in five years, whereas President Carter made none. (7) Similarly, there were seven appointments to the Court between 1981 and 1994 but none between 1995 and 2004. (8) Reformists contend that this new judicial reality is antidemocratic and must be thwarted. (9) Reformists also argue that the current system should be changed due to what they presume to be the following negative consequences of expanded tenure: (1) increased likelihood of superannuated judges at all levels of the federal judiciary, (2) decreased accountability, (3) increased politicization of appointments, and (4) the new tendency to appoint young nominees to the Supreme Court. (10)

To be sure, these arguments for judicial reform are not without merit. Each points to imperfections in the current system. When viewed in the proper context, however, the so-called negative consequences of expanded tenure--and, perforce, the current system--amount to little more than false alarms. (11) No system is perfect, and there is little evidence to suggest that any reform proposal will improve the current one. Indeed, any substantive changes in the appointment process or operations of the Supreme Court may introduce their own negative consequences. (12) As such, reform proposals should ultimately be rejected. Notwithstanding tangible changes to the world, the preeminent concern for maintaining an independent judiciary is as pressing today as it was when the Framers first penned Article III. (13)

Preeminent scholar and Duke University Law Professor Paul D. Carrington contends otherwise. In a recent letter signed by thirty-three members of the legal community and addressed to Vice President Joseph Biden, Attorney General Eric Holder, and certain members of the congressional judiciary committees, Carrington and his cosigners propose four reforms to the Supreme Court. (14) These proposals are styled as statutory texts, "in hopes they would not be treated as 'mere political or scholarly utterances.'" (15) Much more than spontaneous or reflexive responses, the proposals are grounded in several years of research and academic debate concerning the negative consequences of the current system. (16) This diligent research likely accounts for the statutory structure of the proposals, which, according to Professor Carrington, "seemed better 'than writing another law review article.'" (17)

This Article responds to the reform proposals. Specifically, this Article addresses the physiological, institutional, and political arguments that serve as the foundations for these proposals. By demonstrating that the underlying assumptions and arguments that inform the proposals are unsound, the goal is to show that the proposals themselves are at best unnecessary and at worst detrimental to our balanced and divided system of government. Upon doing so, this Article then confronts each proposal in seriatim, highlighting weaknesses as well as the likely detrimental consequences of their implementation.

Part I provides a summation of the four proposals advanced by Reformists. Part II then provides context, offering a brief but necessary history of the Good Behavior Clause in Article III. Specifically, this Part focuses on the original intent of the Framers in providing life tenure to the Supreme Court. Part III addresses the alleged trend of expanded tenure flowing from the current system, as well as the arguments pointing out its negative consequences. (18) Refutations of each argument are provided therein. This Part also examines various approaches to judicial tenure, as evidenced by several foreign democratic jurisdictions. Part IV examines the reform proposals stated above, along with their likely consequences if implemented. Part V offers an affirmative case for the maintenance of life tenure and the status quo. This Part contends that the current system is fundamentally sound. This Article then concludes with a brief summation and some final thoughts.

1. THE LETTER: FOUR PROPOSALS FOR A JUDICIARY ACT OF 2009

   As noted above, Professor Carrington and fellow members of the legal profession (hereinafter "Reformists") submitted a letter to certain members of the U.S. Government advocating four reform proposals for the Supreme Court. (19) The letter introduces each proposal and then provides putative statutory language to encourage adoption as part of a Judiciary Act of 2009. Within the statutory section there are ancillary proposals so as to perfect a seamless transition from the current system to the new one. Noticeably, some signatories rejected certain proposals. All agreed, however, that some reform is needed for the Supreme Court. This Part provides a brief summation of the four proposals contained in the letter, including key excerpts relating to reform. Where appropriate, this Part comments on the fundamental assumptions and arguments that inform the specific proposal.

   First, Reformists propose de facto term limits (20) for Supreme Court Justices set at eighteen years. (21) After eighteen years on the bench, a Supreme Court Justice must declare "senior status." (22) The proposal states that "the nine who are junior in time of service shall sit to decide each appeal certified for its decision on the merits." Thus, Senior Justices would only participate in a case on its merits if there were a vacancy or a recusal of a Junior Justice. (23) The majority of work for Senior Justices would be reviewing petitions for certiorari and riding circuit. (24) Concomitant with this reform, a new Justice would be appointed every two years. (25) These proposals were the most popular, endorsed by thirty out of the thirty-three signatories for a ninety-one percent approval rating. (26) Reformists contend that the proposals would introduce accountability into the Court, rid the Court of superannuation, and ensure that the Court and its decisions "reflect the moral and political values of the contemporary citizens they govern." (27) Reformists also argue that the frequency of biennial appointments would neuter the political process that places Justices on the bench.

   The second major proposal addresses the "fitness and disability of judges." (28) Like the first proposal, this proposal also confronts the notion of superannuation on the Supreme Court. (29) To combat the alleged problem, Reformists propose that the Chief Justice take on the additional task of watchdog for Justices who can no longer perform their duties on the Court. (30) If the Chief Justice has reason to believe that an Associate Justice is in some way mentally or physically disabled, the Chief must then report the matter to the Judicial Conference of the United States. (31) If a majority of judges in that body agrees, the matter is referred to the House Judiciary Committee, which would presumably begin impeachment proceedings. (32) This proposal was endorsed by twenty-eight of the thirty-three signatories, resulting in an eighty-five percent approval rating. (33)

   The third reform proposal moves away from the alleged problem of superannuation but maintains a focus on the Chief Justice. It calls for limiting the office of Chief Justice to renewable terms of seven years. (34) As Professor Carrington et al. put it, "Over time, the powers and responsibilities of that office have been extended into numerous other political, administrative, and non-judicial roles calling for a measure of special accountability for the Justice holding office as Chief." (35) Evidently, concerns for accountability provide the foundation for this proposal. It was endorsed by twenty-two of the thirty-three signatories, for an approval rating of sixty-seven percent. (36)

   Finally, the fourth proposal deals with the certiorari process. (37) The proposal is the least popular among the signatories, with just nineteen endorsing its precepts, for an approval rating of roughly fifty-eight percent. (38) In short, Reformists propose a "Certiorari Division," staffed by experienced circuit court judges and newly created Senior Justices who would designate the vast majority of cases that the Supreme Court would decide on the merits. (39) This proposal confronts the dwindling number of cases the Supreme Court hears every year. Reformists contend that this decline is a function of superannuation and undue reliance on Supreme Court law clerks. (40)

   Having now presented the specific proposals contained in the letter, it is important to discuss the historical antecedents that provoked them. These antecedents help us understand the contemporary arguments for and against life tenure.

2. THE GOOD BEHAVIOR CLAUSE AND PRESUMPTIVE LIFE TENURE

   "The Founding Fathers were convinced that the independence of the judiciary was of paramount importance in their new government. Their belief was embodied in Article III ... which provides for life tenure and an irreducible salary." (41)

   Life tenure for the "supreme and...