Modest Proposal: Fixed Tenure for the Supreme Court

By James Fallows

A reader writes in response to this item about the Kagan confirmation vote and the general depressing ritual of Supreme Court confirmation fights:

As you rightly said it has become a Kabuki spectacle which does a disservice to the nominee, the American people and the Judicial branch itself.

As an alternative Congress should consider a single term appointment, of 6, 10, 12 years which would reduce the angst the public must endure and provide more opportunities for worthy individuals interested in aspiring to a seat on the Court.

I agree. Lifetime tenure for Supreme Court Justices is another of the ideas from 200-plus years ago that might well be adjusted if Madison, Adams, et al had a chance to re-do the Constitution in light of current circumstances. It is inconceivable that people as practical-minded as they would have come up with today's "two Senators for each state" model, California and Wyoming alike, which contributes to the paralysis of the Senate. (As argued here; main point is that when the Constitution was agreed to, the states were much closer in population size, rather than the 70-to-1 difference between today's most and least populous states.) And they might well have rethought the wisdom of open-ended places on the Court.

Average life expectancy at birth during the late 1700s was 30-some years, versus 70-some now. Of course that figure is misleading, since so many people died very young -- and those who reached age 50 often chugged along into their 80s. Still, circumstances have clearly changed. Part of the thick academic literature on the topic is a Harvard Journal of Law and Public Policy article (PDF here), which points out that from the founding of the Republic until 1970, the average tenure of a Justice was under 15 years; since then, it's over 26 years. As a result, actuarial considerations have become fundamental to the modern nominating process, to what the Founders would recognize as a distorting degree. It is a "wasted" appointment to choose someone over age 60, since a nominee in his or her 40s (Clarence Thomas, age 43 when chosen) or early 50s (Elena Kagan, 50) can likely cast that many more votes over the years.  The idea that we're locking in policy for the next three or four decades makes the confirmation process all the more embittered and partisan -- and dishonest, as nominees, whether John Roberts or Elena Kagan, pretend they have no settled views. Older and ailing Justices may hold onto their seats unnaturally long, too, if the "wrong" party controls the White House.

"We believe the American constitutional rule granting life tenure to Supreme Court Justices 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," Stephen Calabresi and James Lindgren, authors of the Harvard Journal article, say. I agree with them too. This is not a new idea, and like many other Constitutional adjustments it's probably not going to happen. But we'd be better off it if did. 

This article available online at:

http://www.theatlantic.com/politics/archive/2010/08/modest-proposal-fixed-tenure-for-the-supreme-court/61109/