The Founding Fathers v. the Supreme Court

May 19, 2010

The Founding Fathers would be outraged about the nomination of Elena Kagan to the Supreme Court. Not because of her personally – Kagan is eminently qualified. They would be outraged that Kagan soon may be awarded 20 years, or 30 years, or an even longer period of lording it over the republic as an unelected demigod answerable to no one. The Framers would be outraged at all recent appointments to the Supreme Court, owing to the evolution of the Court into an institution that vests tremendous power to unaccountable individuals for extremely long periods.

There’s a simple solution to this problem – a solution that would reduce contemporary stress, anxiety and political fist-shaking regarding high-court nominees of any background or party. The solution is Supreme Court term limits. Via Constitutional amendment, place a 10-year ceiling on the period a justice may serve on the Supreme Court.

The United States is the sole developed nation that confers lifelong status to its topmost court: all other countries have a tenure limit, or mandatory retirement age, or both. In the U.K., Supreme Court judges cannot serve past age 75; in Australia, the maximum High Court age is 70, and the longest-serving current member, William Gummow, is entering his 15th year. Contrast that to the United States, where Justice John Paul Stevens is stepping down at age 90 after 35 years of unelected, unchecked power over his fellow citizens.

Lifelong judicial appointments are specified by the U.S. Constitution – federal judges hold their posts “during good behavior,” which was understood to mean permanently, unless they commit crimes. But life tenure meant something very different in 1787 than it means today. When the Framers wrote the Constitution, life expectancy was less than 40 years; today, life expectancy is 77 years. Even taking into account that in the 18th century, the upper class had a higher life expectancy than the working class – today there is no difference – longer lifespans have profoundly altered the meaning of lifetime judicial appointment.

Consider that the first nine justices to leave the Supreme Court sat an average of 8.6 years. The most recent nine to leave: an average of 27 years.

Regardless of whether those who wrote the Constitution expected the Supreme Court to attain the degree of authority it now holds — the high court did not acquire its principal tool, “judicial review,” until the 19th century — the Framers would be horrified by broad, autonomous power vested in lordship-like individuals for decades on end.

Until Franklin Roosevelt, presidents always stepped down after eight years because it was felt improper for any one individual to hold tremendous power for longer periods. Since the 22nd amendment, ratified in 1947, the presidency is term-limited. This is widely viewed as a healthy development, even by admirers of FDR. The recent average Supreme Court tenure of 27 years is more than three times as long as it is felt proper for the executive to hold power.

The solution is a Constitutional amendment to impose a Supreme Court term. The Constitution is a living document, not etched on stone tablets. Lifespans have changed; the Constitution must change to take this into account.

If Supreme Court justices served a fixed 10-year term, the politics of Court appointments would be transformed. The sense of hysterical dread held by Democrats whenever Republicans choose a nominee, and likewise held by Republicans whenever Democrats are in the White House, would be lessened – because donning a Supreme Court rob would no longer mean decades of aristocratic fiat.

If Supreme Court justices were limited to 10 years, the absurd spectacles of confirmation character-attack would decline, because there would no longer be a sense of fear that each appointment might create a monster with never-ending presence. Clarence Thomas was subject to humiliating treatment at his confirmation hearing. The reason was that he was 43 years of age and in excellent health: opponents knew it is not inconceivable he will spend half a century lording it over his fellow citizens.

Had there been a 10-year term in place, there would have been no panic regarding the Thomas nomination – and would be no panic about any future nomination. The hysteria associated with high court nominations is unique to the United States – because only America places its top judiciary in robes for life. Time for a Constitutional amendment to change this.

Term limits further would prevent the Supreme Court from being a geriatric institution whose members are out of touch with the country’s culture and concerns. If confirmed, Kagan will at age 50 be the Court’s youngest member. If terms were limited, the Supreme Court would cease to be a marble-clad old-age home.
A 10-year Supreme Court tenure limit would mean presidents would have about one appointment per year to the court – the average that prevailed in the first few decades of U.S. history – rather than many years passing without a Supreme Court opening, as often has happened in postwar period. Roughly one opening per year would end the national melodrama associated with a Supreme Court selection. One appointment per year would allow a broader diversity of types of people, and of judicial philosophies, to be represented on the court, since each confirmation would not lock in one type of person, or one philosophy, for decades.

(Federal trial and appellate judges also receive lifetime appointments – but their rulings and opinions are subject to scrutiny by higher courts. Because such judges do not hold unaccountable power, lengthy service at these levels should not bother voters, nor would bother the Founding Fathers. My brother Frank is a federal appellate judge, and would keep his lifetime position under my proposal. But Frank’s work is reviewed by the Supreme Court.)

A Supreme Court term limit also would end the unseemly tradition of justices overstaying their welcomes until they grow so frail they barely can stand. History teaches that rare is the man or women who voluntarily relinquishes great power. But the relinquishing of power is healthy for a democracy. Joyful departure parties for 60-year-old justices should replace the gurney and the funeral march.

Because so many postwar justices have hung on and on in their desire to cling to power, there are only two living former Supreme Court justices, Sandra O’Connor and David Souter. In recent decades only Warren Burger, who stepped down from the Court in 1986, took off his robe with enough vigor remaining to serve as a public ambassador for the court. A Supreme Court term limit would mean that former justices were no longer rarities – roughly annually, one would leave the bench, available to assume other roles in society or to travel the country explaining to school and civic groups how the Supreme Court works.

Isn’t it impossible to get an amendment ratified? Of course not. The most recent amendment, the 27th, which restricts the ability of Congress to raise its pay, was ratified in 1992 with little fuss. Certainly it is hard to amend the Constitution: it ought to be hard. But it’s not impossible. Since the Bill of Rights, America has averaged a Constitutional amendment every 13th year. It’s been 18 years since the last – so we’re due! Once the states think this idea through, they will realize a Supreme Court term limit would favor neither party, while preserving judicial independence.

In a democracy, those holding unaccountable positions should not be granted power that lasts until they keel forward in their chairs. We limit the time a president serves because no one sits above the president; for the same reason, we should limit the time Supreme Court justices serve. If the Framers were here today, they’d be pushing for Supreme Court term limits.


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But it most certainly will be impossible to ratify a constitutional amendment. The right will try its best to add one banning abortion. Others will follow. This will kill it instantly.

The best solution is for Congress to stop trying to deny rights to everyone other than white males. Then the Court won’t have to keep invalidating laws.

Posted by Gaius_Baltar | Report as abusive

Totally agree. You make perfect sense to me.

Posted by Warburton | Report as abusive

Ironically, Sandra Day O’Connor who retired at her prime (for personally reasons)was one who paid attention to voters’ inclination as reflected by Congressional legislative decisions. She was a very intelligent, sensible Supreme Court judge who sincerely bridged the original framers’ document with modern needs and aspirations of voters.

Judges with more extreme positions tend to hang on beyond what their health might otherwise allow on any other job.

Posted by Jos5319 | Report as abusive

I my opinion Gregg’s idea and suggestion must be fully considered and developed. Our constitution is short enough to be flexible and adaptable to the changing times,but also is based in immutable principles of human nature and basic Judeo-Christian morality.

Posted by Cautious | Report as abusive

You might be onto something with the term limit argument, Gregg. Limits ought to be a lot shorter than you suggest, though, because over the past several decades there haven’t been many – make that any – SCJs worth having for even one year.

You’re completely wrong about Clarence Thomas whose improbable ascent to Supreme power almost came a cropper after he perjured himself to the bipartisan Senate committee regarding Roe v. Wade. If Biden hadn’t let the hearing slide completely off the rails on account of the pubic hair-raising Hill accusations giving him (amazingly) the underdog edge, CT’d have been dumped like any sleazy old perjurer deserves. Instead, he scraped in after the most improper series of hearing sessions in living record.

Of course partisan revenge for the so-bloodied GOP came later in the form of Clinton’s irrelevant Lewinsky roasting and the rest is her-story, but this probably wouldn’t ever have happened had Biden possessed the requisite presence of mind, masculinity and leadership qualities to keep the Thomas hearings on track, years previously.

Kagan meanwhile is unlikely to be much of an asset to the People of the United States no matter how long she may serve. So we’re stuck with an extra portion of dull to go with the other compromised subprime judicial birds in blackrobe. Supreme injustice!

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“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior”

Constitution of the United States, Article 3, Section 1. I thought the founding fathers wrote that. I don’t see anything in there about term limits.

Posted by Fishrl | Report as abusive

They are placed in office by those we elected! :-)

Posted by The1eyedman | Report as abusive

You’ve made some interesting observations. However, I must disagree with your conclusion. 10 year term limits would certainly lessen the power of the Supreme Court, but that power wouldn’t be dispersed. It would end up in the executive branch. A president serving his second term would have already appointed almost half the court…assuming that the 10 year terms are spread out (if they’re not, the problem becomes even bigger).

Posted by lex_cincinnatus | Report as abusive

Good article.
I agree with Gregg, in principle, although 10 years might be too short for such term, as lex_cincinnatus has pointed.

Posted by yr2009 | Report as abusive

I agree with Gregg; Supreme Court tenure should be limited.

But rather than the 10-year term that he proposes, I lean more towards a term of about 18 years where the longest-tenured justice’s term would expire each odd-numbered (i.e. non-election) year. Several legal experts have suggested such a system in recent years.

Each full-term president would get 2 justices that way and two-term presidents would only get 4. With a 10-year term for justices, a two-term president could appoint all or almost all of the Supreme Court, which is probably undesirable.

As Gregg points out, age or term limits work for all other industrialized countries–and also for 49 of the 50 states (only Rhode Island has life-tenured judges on its highest court).

Posted by Jacob1207 | Report as abusive

Interesting point Greg, my opinion would be somewhat longer term limits (14 years like the Fed, for example) so that a party in power couldn’t stack the court for decades to come.

However, you should get your facts straight on the 27th amendment. That amendment was originally proposed in 1789, and until 1873 had only been ratified by six states. It wasn’t ratified by another state until 1978, at which time it took another 14 years to be made into law. Amending the Constitution is a big deal, and it does not come easily.

Posted by DidUConsider | Report as abusive

10 years is too short.

Would this hypothetical ammendment also include a limit of one term?

Posted by drewbie | Report as abusive

I can’t believe that a Constitutional amendment to limit Supreme Court justices to a ten-year term is going to happen within the lifetime of anyone reading this web page.

Posted by Bob9999 | Report as abusive

I think that the problem is that there is no real way to appoint an apolitical justice. There is no such thing as a purely constitutional judge. They all make interpretations according to the political ideology they bring to the court. That makes them susceptible to congressional stacking.

What we REALLY need is a way to appoint judges that is not connected to party politics. Perhaps a body of apolitical constitutional scholars should be appointing our supreme court justices. That way their records can be evaluated purely in terms of their ability to remain consistent with the constitution. I suggest constitutional scholars because academic types do not involve themselves in shaping politics. That would keep the selection process politically neutral. Judges cannot fulfill their duty to check the other two branches if the selection process is designed to weed out those candidates that differ in their opinions from the opinions of the party in power.

Posted by Benny_Acosta | Report as abusive

Greg writes: “The Framers would be outraged at all recent appointments to the Supreme Court, owing to the evolution of the Court into an institution that vests tremendous power to unaccountable individuals for extremely long periods.” This is perhaps the most absurd, basesless theorization for disruption of our process I’ve seen in years. As an attorney who has specialized in Constitutional law and a former judicial law clerk for a state Supreme Court justice, I speak with a degree of experience. This postulate is frighthening and represents another example of the media overstepping its bounds. Mr. Easterbrook’s postulate skips over the fact that many contemparies of the Founders lived to a ripe old age. The short lifespan was felt by the poor, uneducated, and working class members and not those who authored the Constition or would have been likely to sit on it in the late 18th century. Benjamin Franklin lived to some 85 years of age. Chief Justice John Marshall lived to be 80. George Washington lived to be nearly 70. The list goes on. My point is that his basic premise is off and, in my view, demonstrates his lack of the academic background needed to make such statements to the public without being irresponsible.

Posted by litmustest | Report as abusive

Why did the very sensible and rational yet critical comment above mine just get deleted? I can’t imagine.

One reason for the lack of a term limit is that, if there was one, these lawyers/Justices would have compromised motives. They’d have to look out for their job prospects post-term. And, they could look forward to benefit$ of “judicious” rulings made while on the bench once they return to the private sector.

The life expectancy argument made above is totally wrong and based on an either poor or intentionally manipulative interpretation of life expectancy data. It is the AVERAGE life span, noting that back in the colonial period and until the industrial era, about a quarter of people died during childhood. If you made it past 12, you had a really good chance of making it to 75 or 80.

Really quite a poor argument.

Posted by beersnob | Report as abusive

OH. The comment is back; my bad.

Posted by beersnob | Report as abusive

All positions in the PUBLIC sector should come with term limits. They should also come with modest salaries.The whole idea of power and money is not at all ” For the common good” as both lead, more often than we’d like, to abuse of position in wealth and power. The longer one lives among the clouds the less he remembers what it’s like to walk in the valleys. Do your time, be applauded for your SERVICE , and then step down and allow others to lead.

Posted by Jmac71 | Report as abusive

I’m not sure the argument made in the fourth paragraph regarding longer life expectancy altering the dynamics of court appointments holds much weight. Those life expectancy numbers are heavily influence by infant mortality, etc.

As an experiment I looked at the average ages attained by the first five chief justices and the last five (not including Roberts, obviously). The most recent five, on average, outlived the first five by only 3 years (77.2 vs. 74.2). And the maximum (87) was the same in both groups (Roger Taney and Warren Burger).

Posted by brandon.nedwek | Report as abusive

Well, the basic premise of this article is wrong. In 1787, Benjamin Franklin was well into his 80’s. I’m sure the founding fathers were more than aware that a lifelong appointment could easily extend for decades.

While your reasons for wanting a change maybe valid (I didn’t bother to read the whole thing), don’t pretend it’s what the founding fathers would want.

Posted by RexMax46 | Report as abusive

I think we are all forgetting one thing: Marbury v. Madison. Who would decide if the putative 28th Amendment were constitutional? SCOTUS does. Does anyone (apart from Mr. Easterbrook, who has shown himself academically unqualified to discuss this matter) really suggest that SCOTUS would allow another co-equal branch of government to limit its own power? I know if I sat on the Court, I would certainly not allow it. It seems that we often forget that power may, from time to time, shift slightly from one branch to another, e.g. the shift of power from the Congress to the President during the Civil War. However, the power usually does not shift away from the Court unless the Court allows it, with a few exceptions (as when limiting the jurisdiction of the Court). Instituting a tremendous change like Supreme Court term limits to a fundamental precept of the doctrine of separation of powers would surely undermine the very essence of the American form of government. After all, if the Founding Fathers had wanted the Supreme Court to be so susceptible to the waxing and waning of popular sentiment, they would have made the Supreme Court an elected court. That they did not do so likely indicates that the Court was intended to be rather insulated from external political pressure, and so it should remain.

Posted by jmbray | Report as abusive

I think Gregg’s view is a little narrow and only looking at the benefits of a short term limit, and neglecting what the ramifications of granting these limits would be.

He labels them as ‘unaccountable positions’, which sounds scary at face value, but the real value behind the opposite term ‘accountability’ in government means subject to short term political pressures, a la executive and legislative branches, for which the court was designed to balance. A more appropriate term would be immunity from political pressure.

I think he is also getting confused as to how much and for what kind of power the court really has. They are not liberally handing down new edicts. Cases must shove through a discriminating process of appeals. These cases make it because there’s a genuine question of ambiguity or reasoning that could philosophically go either way BASED on the written word of the constitution. And if the overwhelming and bipartisan majority of the populace believe that that amendment does not represent what their country stands for, then the other two branches can amend it. This belief must be strong enough, though, and represent the overwhelming majority in order to cross party lines and lead to consensus in change. This is your accountability. And its not to the judges, its to our elders who wrote it.

The branches of the U.S. government are very well thought out. Much more thought than the author has obviously put into this article. We will never have a perfect form of government, due to the simply fact that people are imperfect. Fortunately this form of government takes that heavily into account.

Posted by ElDuderino | Report as abusive

Huge flaws in this argument: Life expectancy may have been less than 40 years for all people at that time, but when you factor out infant mortality, it was more like 60. If you take out the underclass, from which justices would never be selected, it’s even higher.

And of those first 9 justices who served only 8.6 years each on average, 4 of them resigned instead of serving until death. John Jay lived 34 years after he resigned, dying at age 84. Thomas Johnson lived 26 years after he resigned, passing at age 87.

I’m not saying limited terms are a bad idea, I’m just saying it’s misleading to argue that what we have now is not what the founders envisioned.

Posted by Lurgis | Report as abusive

I’ll concede the opinions expressed above are probably more enlightened that i about this issue but it is refreshing that the subject is being brought up and discussed. Maybe I miss the point, but the whole process of placing judges in our highest court seems so riddled with politics that it just seems like there has to be a better way to make our appointments. Ten years may be too short a time but do we really want someone sitting on the court for 25-40 or more years? I’m happy for the discussion and hope it moves forward in debate, even if we end up not changing a thing. Times do change and it’s always good in my view to keep the discussion ongoing about how our government operates. Thank you everyone for your comments.

Posted by rocknrev | Report as abusive

The Supreme Court doesn’t get to evaluate whether constitutional amendments are legal. They do eventually get to decide how to apply them, but a well written 28th amendment mandating some sort of term limit would be enacted if the Congress & the States make it the law of the land. They are the supreme court, but their power isn’t unchecked.

Posted by oneb91 | Report as abusive

“When the Framers wrote the Constitution, life expectancy was less than 40 years”

And yet, they saw fit to require the president to be at least 40?

Posted by drewbie | Report as abusive

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Posted by hardyshoes | Report as abusive

The Supreme Court is a bunch of out of touch loons

Posted by STORYBURNcom2 | Report as abusive

The Supreme Court is a bunch of out of touch loons

Posted by STORYBURNcom2 | Report as abusive

Perhaps setting an age limit might be an appropriate option. 10 yrs. does seem a bit short, while a life term seems a bit long.

Posted by rbgage | Report as abusive

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Posted by Pie N Politics » The Founding Fathers v. the Supreme Court | Journalist Profile | | Report as abusive

The constitution only says what whoever is in power says it says. Appointing a “team player” for life provides a means of preserving an idealology and so, keeps the power, baby! Of course term limits is a good idea. Term limits for congress is a good idea too. Good idea’s aren’t rare. Certainly no one in power would take this seriously.

Posted by Avatar666 | Report as abusive

Easterbrook is a complete idiot. He writes: “When the Framers wrote the Constitution, life expectancy was less than 40 years….”
Yet the requirements according to the Framers to be POTUS is at least 35 years old.
So they expected over 80% of a POTUS’s to die in office?.
Great way to run a country!

Esterbrook, how about your retiring form being a writter after 10 yesrs. Or are you too stupid to count to 10!

Posted by frankz | Report as abusive

[…] we impose term limits on Supreme Court justices? Consider: “When the Framers wrote the Constitution, life expectancy was less than 40 years; […]

Posted by Daily David – | Report as abusive

Whether or not you like the idea of lifetime terms, the idea that the framers would be rolling over in their graves about lifetime terms is preposterous. First, to say that the Supreme Court was “given” its powers in “the nineteenth century” is, although technically correct, slightly disingenuous. 1803 to be exact when the primary mover of the Constitution (James Madison) was President and most, if not all the framers were not only alive but active in the political landscape.

The framers after all invented lifetime terms because they did not want the judiciary branch (all federal judges have lifetime terms) to be subject to political pressure or the whims of the electorate. Why would the framers object to unaccountability when the framers themselves intended them to have lifetime terms? The truth is that they are not “unaccountable.” Most of their decisions can be changed by legislation (most of their decisions are not “constitutional”) and all can be changed by constitutional amendment. But they are not subject to the whims of the electorate, or to the preferences of those who nominate them. They have to be approved by the Senate and the President. Sometimes it turns out that seeming conservatives are liberal and seeming liberals are conservative in their decisions (or like Scalia, it depends on the case). Do you believe them to be dishonest or politically motivated, despite the fact they are not subject to political pressure? The framers did not want a judiciary that changed quickly because in the law it is unwise and unstable to change at the whims of the ADD ridden electorate. They knew that then and it is more true now.

I think the framers would be much more concerned with gerrymandering, continuous campaigns in congress and the problems of a sound bite polarized society than they would be about a judiciary that is not subject to political change or whim. The courts are there to counteract the politics not participate in it. With the internet and thoughtless TV our politics becomes more every day like the anonymous politics of the mob – people shouting and nasty and ugly with a herd mentality – the judiciary is a welcome respite from that.

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