The case for Supreme Court term limits.

Sunday, April 10, 2005 12:01 a.m. EDT
It has been almost 11 years since the last vacancy opened up on the Supreme Court. The current group of justices has served together for longer than any other group of nine justices in American history. What is more, the average tenure of justices has gotten a lot longer in the last 35 years. From 1789 until 1970, justices served an average of 14.9 years. Those who have stepped down since 1970, however, have served an average of 25.6 years. This means justices are now staying 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 has been 53, which is the same as the average age of appointment over the rest of American history. The retirement age, however, has jumped from an average of 68 pre-1970 to 79 for justices retiring post-1970. Two of the current justices are in their 80s, two in their 70s, and four more between 65 and 69. Only one, Clarence Thomas, is younger than 65. The current Court is a gerontocracy–like the leadership cadre of the Chinese Communist Party.

Indeed, David Garrow’s scholarship has shown that decrepitude has been a problem with the last 10 justices to retire, those who left the bench from 1971-94. By some accounts, half of the last 10 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. 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.

With justices now staying 10 years longer than they have historically, vacancies are opening up a lot less often. Between 1789 and 1970 there was a vacancy on the Court once every 1.91 years. In the 34 years since the two appointments in 1971, there has been a vacancy on average only once every 3.75 years. The typical one-term president now gets to appoint only one instead of two justices, and with the recent 11-year drought of vacancies a two-term presidency could in theory go by without being able to make even a single Supreme Court appointment. We think this is unacceptable. No powerful government institution in a modern democracy should go for 11 years without any democratic check on its membership. Nor should powerful officials hold office for an average of 25.6 years with some of them serving for 35 years or more. The rules allowing Supreme Court justices to do this are a relic of the 18th century and of pre-democratic times.

No other major country in the world allows the justices of its highest constitutional court to serve for life without a mandatory retirement age. England has a mandatory retirement age, and France, Germany, Italy, Spain and Austria all appoint their equivalents of our justices for a fixed term of years. In addition, none of the 50 states appoints its supreme court justices for life.

For these reasons, over the past few years we have been advocating a constitutional amendment that would limit the justices to an 18-year term with one seat opening up every two years. Tomorrow, a conference of scholars (most of whom are committed to this idea) will meet at Duke Law School to discuss various proposals for such an amendment. Our amendment would not apply to the currently sitting justices or to the current president and would go into effect when a new president takes office in 2009. In this respect, it would resemble the two-term limit on presidents that went into effect prospectively and which also restored a time-honored tradition of limited government service.

Some have suggested that Congress might have power to limit Supreme Court terms by passage of an ordinary statute. We disagree. The Constitution specifically contemplates a separate office of Supreme Court justices, and it logically implies that that particular office must be held for life. For 216 years, Americans have so understood the constitutional text. We think that practice has thus settled the idea that Supreme Court justices currently serve for life. To change that practice, a constitutional amendment is required.

The current system of life tenure leads to many abuses. Justices time their departures strategically to give presidents they like an appointment. Presidents appoint young candidates to the Court in place of 60-year-olds to maximize their impact on the Court. We believe that Senate confirmations are more bitter because all involved know that they are picking someone who may end up serving 35 years instead of 18, making the stakes much higher. For 180 years through 1970, we had Supreme Court tenures of about 15 years, a practice that worked well. Now that this system has broken down, it is time to restore some sanity to the process of selecting our justices. A first step would be to institute reasonable term limits for the members of the Supreme Court.