Term limits for the Supreme Court: life tenure reconsidered.

• Author: Calabresi, Steven G.

INTRODUCTION I. THE NEED FOR REFORM: THE EXPANSION OF LIFE TENURE A. The Expansion of Life Tenure Documented B. Periodization and Related Empirical Issues C. Explaining the Trends in Life Tenure D. Consequences of the Expansion of Life Tenure 1. Reduced Democratic Accountability 2. Increased Politicization of the Confirmation Process 3. A Rise in "Mental Decrepitude" on the Court E. The Rarity of Life Tenure in the World's Constitutional Courts II. TERM LIMITS FOR THE SUPREME COURT A. Imposing Term Limits Through Constitutional Amendment B. The Term Limits Proposal C. Advantages of the Proposal D. Objections to the Proposal (and Responses Thereto) III. ALTERNATIVE MEANS OF SOLVING THE TENURE PROBLEM AND THEIR DRAWBACKS A. Imposing Term Limits by Statute 1. The Calabresi-Lindgren Proposal 2. The Carrington-Cramton Proposal 3. The Constitutionality of the Two Statutory Proposals 4. The Desirability of Imposing Term Limits by Statute B. Imposing Term Limits through Informal Practice 1. Senate-Imposed Limits Through Term Limit Pledges 2. Limits Imposed Through Internal Court Rules 3. Justice-Imposed Limits Through Voluntary Retirement CONCLUSION APPENDIX INTRODUCTION

In June 2005, at the end of its October 2004 Term, the U.S. Supreme Court's nine members had served together for almost eleven years, longer than any other group of nine Justices in the nation's history. (1) Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Moreover, before the death of Chief Justice William Rehnquist in September 2005 and Justice Sandra Day O'Connor's announcement in July 2005 of her retirement that eventually took effect on January 31, 2006, five of the nine Justices had served on the Court for more than seventeen years, and three of those had served for more than twenty-three years. (2) The other four Justices had each already spent between ten and fourteen years on the Court. At the same time, four of these nine Justices were seventy years of age or older, and only one was under sixty-five--once the traditional retirement age in business. (3) Because of the long tenure of these members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005. (4)

We believe the American constitutional rule granting life tenure to Supreme Court Justices (5) is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history. This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court's membership. The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. (6) Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. Finally, as was detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of "mental decrepitude" on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers. (7) A regime that allows high government officials to exercise great power, totally unchecked, for periods of thirty to forty years, is essentially a relic of pre-democratic times. Although life tenure for Supreme Court Justices may have made sense in the eighteenth-century world of the Framers, it is particularly inappropriate now, given the enormous power that Supreme Court Justices have come to wield. (8)

In this Article, we call for a change to the life tenure rule for Supreme Court Justices. We begin in Part I by analyzing the historical data on the tenure of Supreme Court Justices and responding to a recent critique of this analysis. The causes and consequences of longer judicial tenures are also examined. Part I concludes by describing the approach to judicial tenure that all other major democratic nations and U.S. states have taken to demonstrate that, comparatively, the U.S. Supreme Court's system of life tenure is truly an outlier. (9)

To resolve the problems of life tenure, we propose in Part II that lawmakers pass a constitutional amendment pursuant to Article V of the Constitution instituting a system of staggered, eighteen-year term limits for Supreme Court Justices. (10) The Court's membership would be constitutionally fixed at nine Justices, whose terms would be staggered such that a vacancy would occur on the Court every two years at the end of the term in every odd-numbered calendar year. Every one-term President would thus get to appoint two Justices and every two-term President would get to appoint four. Our proposal would not apply to any of the nine sitting Justices or to any nominee of the President in office when the constitutional amendment is ratified. Supreme Court term limits ought to be phased in, as was done with the two-term limit for Presidents, which did not apply to the incumbent President when it was ratified.

Our proposal builds on the views of a number of distinguished commentators and judges from broadly varying backgrounds who have opposed life tenure for federal judges, including some of the most venerable figures in American history. Thomas Jefferson, for example, denounced life tenure as wholly inconsistent with our ordered republic. (11) Accordingly, he proposed renewable terms of four or six years for federal judges. (12) Robert Yates, who wrote as Brutus during the ratification period, denounced life tenure for federal judges and the degree to which it separated courts from democratic accountability. (13)

Most relevant to our own proposal are the writings of several modern commentators in support of term limits for Supreme Court Justices. In 1986, Professor Philip Oliver (14) proposed fixed, staggered terms of eighteen years that would, among other benefits, allow for appointments every two years, balance the impact that Presidents can have on the Court's makeup, and eliminate the possibility of Justices' remaining on the Court beyond their vigorous years. (15) Several other commentators have also called for term limits for Supreme Court Justices, or for federal judges generally, but did not propose terms of eighteen years. (16) After an early version of this Article was written and discussed publicly, but before its publication, James DiTullio and John Schochet proposed a system of eighteen-year term limits for Supreme Court Justices in a student Note. (17) Their primary concerns were not that Justices are staying too long on the Court but that the current system allows for strategic timing of retirements, encourages the appointment of young nominees to the Court, and fails to distribute appointments evenly across different presidencies. (18) Finally, Professor L.A. Powe, Jr. recently identified life tenure for members of the Supreme Court as "the Framers' greatest (lasting) mistake," (19) and called for eighteen-year term limits on Supreme Court Justices. (20) Of the leading legal scholars to write about Supreme Court term limits to date, only one figure, Professor Ward Farnsworth of Boston University, has defended life tenure as it currently operates. (21)

Although many commentators have thus called for term limits on Supreme Court Justices, their proposals have received little attention, perhaps for two reasons. First, many Americans mistakenly believe that a system of life tenure is necessary to preserve an independent judiciary. Second, despite these scholars' various proposals, a comprehensive case has yet to be made in the literature for the need to reform life tenure. We seek to make that case by demonstrating that the real-world, practical meaning of life tenure has changed over time and is very different now from what it was in 1789 or even 1939. This significant change provides a strong, nonpartisan justification for reconsidering life tenure.

Our proposal is ultimately a Burkean reform intended to move the Justices back toward an average tenure that is similar to what the average tenure of Justices has been over the totality of American history. Just as the two-term limit on Presidents restored a tradition of Presidents stepping down after eight years in office, our eighteen-year term limit on Supreme Court Justices would push the average tenure of Justices back toward the 14.9-year average tenures that prevailed between 1789 and 1970 and away from the astonishing 26.1 year average tenure enjoyed by Justices who stepped down between 1970 and 2005. (22) Our proposed amendment would thus merely restore the practice that prevailed between 1789 and 1970 and would guarantee that vacancies on the Court would open up on average every two years, with no eleven-year periods without a vacancy as has happened between 1994 and 2005. This then is a fundamentally conservative call for reform, all the more so because we resist the calls of many commentators for a very short tenure for Supreme Court Justices. The eighteen-year nonrenewable term we propose is more than long enough to guarantee judicial independence without producing the pathologies associated with the current system of life tenure.

Our proposal for imposing on Supreme Court Justices a staggered, eighteen-year term limit, with a salary for life and an automatic right to sit on the lower federal courts for life, could theoretically be established in a variety of ways, but the only way we approve of is through passage of a constitutional amendment pursuant to Article V. Accordingly, we outline in Part II below our proposal for a constitutional amendment instituting term...