Posted by Jim Lindgren:
NY Times article on Supreme Court term limits.--
Linda Greenhouse has an article in the Sunday NY Times, Week in Review
(p. 5), describing the growing movement for term limits on the US
Supreme Court. My colleague, Steve Calabresi, has been discussing this
for years, though he wasn't the first to suggest it. And a few years
ago, I discussed our proposal for 18-year term limits on the
ConLawProf discussion list. Then in 2002, Calabresi and Akhil Amar did
an op-ed for the Washington Post on [1]the topic.
Here are Greenhouse's [2]opening paragraphs in the NY Times:
How Long Is Too Long for the Court's Justices? By LINDA GREENHOUSE
Lifetime tenure for judges was "the best expedient which can be
devised in any government," Alexander Hamilton wrote in The
Federalist No. 78, defending the Constitution's provision for
judges to "hold their Offices during good Behavior." Of the wisdom
of that proposition, he added, "there can be no room for doubt."
But an ideologically diverse group of legal scholars is now not so
sure. Judicial tenure? Definitely. A long one? Probably. But life
tenure, which increasingly translates into 25 to 30 years on the
bench, extending into extreme old age? When it comes to the Supreme
Court, at least, there seems to be plenty of room for doubt, and
the doubts are growing.
Judges depart from the lower federal courts with regularity,
assuring a steady turnover. Supreme Court vacancies, on the other
hand, are rare events. It has been nearly 11 years since the last
one, when Harry A. Blackmun stepped down at age 85 after 24 years
on the court.
The trend is clear. From 1789 to 1970, the average Supreme Court
justice served for 15.2 years and retired at 68.5. But since 1970,
the average tenure has risen to 25.5 years and the average age at
departure to 78.8. [Although Greenhouse doesn't give her source,
these are from my data analysis, though it appears that she
misrounded the first figure from 15.12 to 15.2-JL]
In law review articles and commentaries that began as a trickle a
few years ago and that now, as these things go, amount to a flood,
scholars are questioning whether this is what the Framers had in
mind. The modern justices' longevity "has fundamentally altered the
practical meaning and implications of lifetime tenure," Professors
Steven G. Calabresi and James Lindgren of Northwestern University
School of Law have written in an unpublished article.
"We aim to dispel the myth that life tenure for justices is
fundamental to our democratic self-government," they write,
pointing out that only one state, Rhode Island, provides it for its
supreme court judges and that every other major democracy has age
or term limits.
The academic critics see a variety of negative consequences from
life tenure. One is that the scarcity and randomness of vacancies
promise to turn each one into a galvanizing crisis. Other drawbacks
include the temptation for justices to time their retirements for
political advantage; an overemphasis on youth and staying power as
a qualification for nominees; the likelihood that even those
justices who escape the infirmities of old age - and, predictably,
not all will escape - will tend after many decades to lose touch
with the surrounding culture; and the fear that if the court is
seen as out of touch and unaccountable to a democratic society, its
legitimacy will erode.
"The result is a situation of grave proportions needing
correction," wrote two other law professors, Paul D. Carrington of
Duke and Roger C. Cramton of Cornell. "Unchecked power, the
Founders correctly believed, has a tendency to produce a degree of
hubris and arrogance among those who exercise that power."
The article goes on from our proposal to discuss some of the details
of a proposal by Paul Carrington and Roger Cramton, which is similar
to ours, but with a different phase-in. Recently, they circulated a
proposal for 16-year term limits, but they have now corrected it to
call for 18-year limits, which makes theirs consistent with most other
proposals.
Under our proposal (like some others), after a phase-in period a
President would appoint a new Justice every odd year. At the end of 18
years, the Justice would go on senior status, and could be assigned to
hear cases on other federal courts.
References
1. http://www.law.yale.edu/outside/html/Public_Affairs/278/yls_article.htm
2. http://www.nytimes.com/2005/01/16/weekinreview/16gree.htm
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