The current battle over Supreme Court appointments reveals more than just partisan bickering. It spotlights basic flaws in the US judicial system. Among the most obvious questions is the lifelong tenure granted to Supreme Court justices. Roberts, for example, may run the court through the terms of the next 10 presidents.
An excellent article by Ronald Brownstein in the LA Times reports that a growing coalition from the left and right is questioning whether lifetime appointments still serve the purposes intended by the founders:
Justices today, on average, remain on the high court longer and retire at a more advanced age than ever before. Supreme Court justices now routinely serve a quarter-century or more. No justice has retired at an age younger than 75 since 1981 (when Potter Stewart stepped down at 66).
The Soviet Politburo probably turned over faster.
Which is why an informal band of prominent legal thinkers from left and right is challenging the Constitution’s grant of lifetime tenure to Supreme Court justices. With life spans lengthening, and the court’s members clinging so tenaciously to their robes, these critics want to limit justices to a single fixed term, usually set at 18 years.
So far, no prominent politician has joined them. But the idea seems destined to generate more discussion as frustration in both parties mounts over the process of selecting and confirming Supreme Court nominees.
As we’ve seen with the agonies over current and recent SC nomination and confirmation, the stakes have become too high. Instead of the “above-the-fray” collection of wise people intended, the court has become the primary fuel for extreme partisan rhetoric and maneuvering by every portion of the political spectrum. The current system not only doesn’t work, but works against exactly what it was intended to do.
If I had a vote, it would be for 12-year terms with one renewal if approved by a 3/4 vote in Congress and presidential assent. I don’t generally believe in the myth of political “moderation”, but the courts are the one place where nonpartisan neutrality is essential. Giving one president the power to shape the country for 40 years after leaving office, even if s/he’s impeached or driven from office in disgrace, seems a ridiculous way to run a country.
Term limits for justices (in conformance with almost all other democracies and almost every US state) would be one small step toward the radical reform our court system needs in order to deal with demands that go so far beyond the 18th-century patrician perspective of the founders.
I think it has become necessary to take the power of appointment away from the president and give it to a supermajority of Congress, but that’s a whole nother can of worms that would take a Constitutional Convention to straighten out.
It ain’t broke, don’t fix it. I don’t see SCOTUS as different than any other institution in terms of the importance of experience. There are two other branches of our government in balance with the Court.
This conversation seems to come up only when governance is perceived as being under one-party control.
Well, one-party control is a condition that the Constitution should address, is it not? I think the endless partisan fights over nomination and confirmation show that it IS broke, and broke badly. I prefer much deeper change then just term limited justices, but this would be a start.
Not sure I agree with that (obviously). Granted that this is the worst Congress + Executive combination I’ve seen in my lifetime, but I’ve only been voting since ’68. I chaff against term limits because I think to some extent we are responsible for the government we elect.
I’d rather see 3-day elections, one weekend day required.
I think this is an interesting idea, but the problem is that we’d lose both the good AND the bad judges. Yes, we’d get rid of Thomas, but we’d also lose Ginsburg, who seems decent.
I think a better alternative would be to force the Senate to take seriously its part in the process. Perhaps nominees should have a much higher threshold for confirmation — 3/4 or even higher works for me. Generally, that will mean that both parties support a candidate, and it would also give more weight to individual votes than to party allegience. Also, nominees should be significantly more forthcoming about their work and their perspectives. I think it’s ridiculous that John Roberts is our Chief Justice when we know nothing about him.
Of course, all of this would require that people actually put aside partisanship to find the best judges, and I’m sure that won’t happen any time soon….
We don’t have any great judges on the SC that I know of, so I don’t see much of a loss. In fact there have been very few outstanding justices in the whole history of the court. I don’t see that we’d lose anything by shaking things up a little.
To me, the central issue is that appointees like Roberts, with no history except as a corporate gun for hire, will now shape the court through the terms of as many as 10 future presidents. I don’t call it balance when one president gets that much veto power over his successors, no matter how bad that president gets. Even if Bush were impeached or driven from office, Roberts would be there to carry on his agenda for maybe 40 years. Why on earth do we gamble our future on the luck of the draw and the random lifespans of the incumbents? Makes no sense at all to me.
It’s science.
A week or two ago CNN did a technology report in which they discussed the medical community regarding maximum lifespan as increasingly likely to become optional.
Given that there are already animal demonstrations of extensions of lifespans running 30% or so, we’ve already passed the threshold of being sure of the lifespan of today’s young people.
There’s probably uncertainty of the lifespan of Chief Justice Roberts. At about 50 he’s of the antiquated boomer generation, as certain Other forums regard it, yet after a full generation of future progress he’ll only be 70. It’s entirely plausible to forsee a Roberts term of 40 years.
The modern world is leaving the Constitution behind in dimension after dimension. I for one don’t think we can afford to have our serving leadership left behind as well.
failure to address the changes brought about by science and technology is not a problem with the Constitution. Lifespan is one aspect, but the whole worldview of an unchanging society has become almost comical, and yet that is what the Constitution as written ties us to. The SC has become the creature of the two-party system, which the Constitution’s writers did no want and actively opposed. And yet their document chains us to the ridiculous farce we’re seeing now as we try to find decent members of our most powerful, unaccountable branch of government.