Posted by Jim Lindgren:
Supreme Gerontocracy: Wall Street Journal Op-Ed on Supreme Court Term Limits.--
Steven Calabresi and I have a Friday Wall Street Journal op-ed
advocating 18 year term limits for Supreme Court Justices, which
anticipates the [1]Duke conference on ours and other such proposals
that will be held on Saturday.
I don't know whether our op-ed will be online for nonsubscribers to
the Journal, though at the moment it is listed in a box for
subscribers on the right side of this page at [2]OpinionJournal.com.
The draft of our manuscript can be downloaded from [3]our page at
SSRN, where it is posted along with an abstract.
Here is part of an earlier version of our op-ed [I will update this
post when I get the final language]:
SUPREME GERONTOCRACY
It has been almost 11 years since the last vacancy opened up on the
U.S. Supreme Court. The current group of justices have served
together for longer than any other group of nine justices in
American history. What is more, the average tenure of Supreme Court
justices has gotten a lot longer in the last 35 years. From 1789
until 1970, Supreme Court justices served an average of 14.9 years.
The justices who have stepped down since 1970, however, have served
an average of 25.6 years. This means Supreme Court justices are now
staying for more than 10 years longer on average on the Supreme
Court than they have done over the whole of American history.
The reason for this is not hard to find. Recently, the average age
at time of appointment to the Court has been 53 years old, which is
the same as the average age of appointment over the whole of
American history. The retirement age, however, has jumped from an
average of 68 years old prior to 1970 to 79 years old for justices
retiring since 1970. Two of the current justices are in their
eighties, two are in their seventies, and four more are 65-69 years
old. Only one justice, Clarence Thomas, is less than 65 years old.
The current Supreme Court is nothing less than a gerontocracy�kind
of like the leadership cadre of the Chinese Communist Party.
Indeed, mental or physical decrepitude has been a serious problem
with the last ten justices to retire, those who left the bench from
1971 through 1994. By David Garrow's account, half of the last ten
retirees have been too feeble or mentally incompetent to
participate fully in deliberating and deciding cases�or even in
some instances, to stay awake during the few mornings of oral
arguments held each month. While mental incompetence was rare in
the first century on the Court, since 1898 it has become a regular
occurrence for justices who serve more than 18 years; by one
estimate about a third were mentally incompetent to serve before
they finally retired.
References
1. http://www.law.duke.edu/publiclaw/conference/spring2005/schedule.html
2. http://opinionjournal.com/
3. http://ssrn.com/abstract=701121
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
