Thank you for sharing!

Your article was successfully shared with the contacts you provided.
WASHINGTON — Life tenure for U.S. 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 School of Law 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,” says 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 Supreme Court through the appointment process, they explain 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 high 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 says. “It’s not just antiquity. It’s a problem of being in the same position for too long.” This longevity, he says, 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 says, “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 year on the court — as the most dramatic recent example of a justice overstaying. But Emory University Law School 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 says. 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 for 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 past 150 years have 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 Supreme Court justices 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 their plan when it is fully functioning, 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 high 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. “Eighteen years of judicial office on the Supreme Court is long enough to guarantee judicial independence from the political branches,” the two professors say in their joint statement. “But it is short enough and certain enough to serve other equally important policies.” Presidential Power The plan would give each president some influence over the court — but not too much or too little, the professors say, noting that presidents like Jimmy Carter named no new justices to the court because no vacancies materialized. The regular rotation might also reduce the incentive presidents now have to appoint young justices who can extend their appointing president’s influence over the court for decades. The legislation provides for contingencies such as a rash of vacancies that would require appointment of justices at a higher rate than one every two years. And to avoid charges that they are seeking to get rid of current justices, the professors’ proposed law would not affect the current nine justices at all, making for a tricky transition period that would continue until all nine justices now sitting depart. That could take 30 years or more. The professors acknowledge the plan’s complexity. “The legislation we propose is not as simple as we might wish,” their joint statement concedes. “This is so because it deals with a problem that is as sensitive as it is important.” But Emory’s Garrow says that such complexity can be fatal. “It is so Rube Goldberg-complicated that I think it would be dead on arrival in Congress,” says Garrow, who has written extensively on life tenure and aging justices. Garrow also thinks the proposal, even if it were signed into law, might not pass constitutional muster because it alters the Constitution’s design for the position of Supreme Court justice, insulated from political influence by life tenure. Even though the proposal would give Article III judicial duties to senior justices — a position that does not now exist — Garrow thinks the plan would “fundamentally diminish the office of justice” by in effect demoting justices as they are bumped off the court. Cramton and Carrington think the law would be constitutional, fitting under the broad range of legislation that Congress is entitled to enact concerning the structure of the federal court system. “But if it turns out that this can only be achieved by constitutional amendment,” says Cramton, “that’s fine too.” Getting the debate under way is his main goal, he says. “The problem has been permitted to languish for too long.” Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.