The Founding Fathers v. the Supreme Court
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.