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Washington—Life tenure for Supreme Court justices is one of the fixed features of the constitutional landscape. Or is it? A group of noted law professors—led by Cornell Law School Emeritus Professor Roger Cramton and former Duke University Law School Dean Paul Carrington—is hoping to launch a re-examination of Supreme Court life tenure by advancing a complex proposal for legislation that would, in effect, force justices into senior status after roughly 18 years on the high court. “These guys are simply hanging on too long,” said Cramton, who clerked for the late Justice Harold Burton nearly 50 years ago. “Some of them become famous just for being on the court so long.” With op-ed columns, law review articles and a tentatively planned conference on the issue in the spring, the professors hope to force the nation to face what they say is a long-ignored problem of ever-lengthening and increasingly unaccountable service on the nation’s highest court. The power of the electorate to influence the court through the appointment process, they said in a joint statement, “has been steadily diluted by the increasing infrequency of vacancies.” The proposal is backed, they say, by leading academics ranging from liberal Georgetown University Law Center Professor Mark Tushnet to Federalist Society co-founder Steven Calabresi, a professor at Northwestern University School of Law. Without dwelling on the health problems of Chief Justice William Rehnquist, Cramton and Carrington also think that current attention focused on potential court vacancies will lend urgency to the issue. Medical advances have pushed life expectancy to the point where more justices are living and serving longer, they assert, giving Supreme Court justices too much unchecked power. The average length of service on the current court is 18.7 years, but they note that a new justice appointed at age 53 would have a life expectancy of 77 years-meaning 24 years on the bench. “There comes a time when someone else should be making these decisions,” Carrington said. “It’s not just antiquity. It’s a problem of being in the same position for too long.” This longevity, he said, breeds arrogance and hubris. Adds Northwestern’s Calabresi: “A lot of people are very interested in this issue right now,” in part because it has been 10 years since the last high court vacancy. Noting that the average length of service of justices who left between 1971 and 2000 was 25.5 years, Calabresi said, “Serving 25 years or more is too long in a democracy.” The scholars point to William O. Douglas-who served for 36 years in spite of a debilitating stroke in his final years-as the most dramatic recent example of a justice overstaying. But Emory University School of Law scholar David Garrow wonders if the professors will have trouble creating a public clamor for their proposal. “Is there a consensus that Rehnquist and Stevens have stayed on the court too long? I don’t think so,” Garrow said. Rehnquist, 80, has been on the court for almost 33 years, and John Paul Stevens, 84, has served for 29 years. A legislative solution As currently written and amended, the Constitution sets the terms of office and provides ways to fill vacancies for presidents and members of Congress. But there is no way to remove life-tenured justices except by impeachment, no matter what infirmity afflicts them. Cramton and Carrington state that none of the hundreds of constitutions that have been written worldwide in the last 150 years has created “a court of last resort staffed by judges who are entitled to remain in service until they die or are found guilty of very serious misfeasance.” By proposing a legislative remedy, the professors hope to beat the almost insurmountable odds against passage of a constitutional amendment. In past discussions about Supreme Court longevity that have flared up sporadically over the decades, the assumption has been that the only way to alter justices’ life tenure is by a constitutional amendment. But, harkening back to the early days of the republic when justices also had circuit-riding duties on lower courts, the professors think that, through legislation, they can rejigger the job description of a Supreme Court justice so they could retain life tenure-but serve on other courts in some kind of senior status after they have served on the Supreme Court for approximately 18 years. Under the professors’ plan, presidents would appoint one new justice in each two-year term of Congress, guaranteeing that each president would get to name at least two justices. The arrival of each new justice would bump the most senior sitting justice into senior status, with circuit duties and other functions—including occasional tie-breaking service on the Supreme Court itself. Since the court is made up of nine justices, this procedure would mean that at the end of roughly 18 years, the first justice appointed under the new law would be rotated off the court into senior status by the arrival of a new justice. From then on, justices would rotate off in the same way, giving each approximately 18 years on the Supreme Court.

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