The Constitution provides that judges serve during good behavior – essentially for life – but since at least 1807 calls have been made to amend the Constitution to limit judicial tenure, starting with Thomas Jefferson himself who was frustrated by his inability to remake the federal judiciary.
In recent years those calls have been renewed, with proposals either of establishing lengthy judicial terms (eighteen year staggered terms is a popular model) or mandatory retirement age.
The criticisms of the current system fall roughly into three categories. First, judges are being appointed too young or with too much focus on their philosophical purity in an effort to lock in justices of a particular philosophy for as long as possible. This is lamented either as overlooking more qualified, but older, candidates, or as favoring rigidity of thought. Second, life terms are seen as driving up the stakes for an intensely contentious judicial confirmation process. Third, judges act too politically in terms of when they retire in order to ensure a philosophically compatible successor, sometimes leading to judges staying past their prime either physically or mentally.
But would 18-year terms or age limits fix these problems without creating others?
Much has changed since the Framers of the Constitution envisioned a system in which life tenure would protect judicial independence. Life expectancies have lengthened and the prestige of Supreme Court service has risen. With the end of circuit riding, decreased workload, and the advent of clerks and new technology, the job may be easier than ever.
And it can be questioned to what extent the existence of life tenure truly insulates the justices from outside influence. Justices may not have to curry favor to find their next job, but much has been written about the “Greenhouse Effect” pushing judges to the Left in search of more positive treatment by the media who are writing at least the first draft of history.
Thus it is possible that the benefits of life tenure imagined by the Framers are not as significant as they imagined, at least in the twenty-first century. However, the question remains whether lengthy terms or a mandatory retirement age would address the problems any better.
Concerns about youthful appointments driven by the current politicization of the judicial process appear overblown, particularly in historical context. From the earliest years of the republic, justices were being nominated in their 40s and even in their 30s, something that it’s hard to imagine a president choosing or even a friendly Senate approving in the modern era. Mandatory retirement ages would, if anything, increase the incentives to appoint young justices, although lengthy terms of service might extend the age range of potential nominees somewhat.
Has life tenure increased the incentive for judges to stay on the bench past their prime? Possibly. Certainly some of the most notorious examples of justices who stayed past the time they were able to meaningfully contribute would have been forced to retire if either lengthy terms or mandatory retirement ages had been instituted. But both mechanisms would undoubtedly have cut short many illustrious judicial careers – a concern that motivated the founders who had seen state judicial retirement provisions do just that. It’s also worth considering that mandatory retirement provisions of any sort would likely disqualify most justices before they reach the age of Liz Warren, Donald Trump, Joe Biden, or Bernie Sanders. For better or for worse, large numbers of the American people seem to think these individuals are young enough to perform the tasks required by the presidency, a job requiring a great deal more physical, if not mental, stamina than that of Supreme Court justice.
But the biggest motivation for judicial reform seems to be reducing the politicized nature of the confirmation process by either discouraging politically strategic departures or reducing the stakes for judicial seats. And it’s not clear that changing life tenure would significantly turn the temperature down on confirmation battles.
Under any of the reform proposals, Judges still could retire early to allow a like-minded president to appoint their successors. And even a mere 18-year term still would give a Supreme Court justice an incredibly long term of influence, significantly outlasting their appointing president and likely most of the members of the Senate who voted for them.
The reason Supreme Court confirmations are such contentious battles has less to do with the length of judicial terms than with the outsized role the Court now plays in American society. The growth of the federal government and the constitutionalization of more and more areas of law have brought ever more aspects of American life under the Court’s control. The abundance of judges who do not view themselves as limited by constitutional or statutory text also drives the politicization of the confirmation process. By adding to the content of laws, they are acting as politicians rather than judges, and should expect a political selection process to match.
There may be good reasons to move from life tenure to judges to a different system that matches the needs of a twenty-first century judiciary. But we shouldn’t expect that change to meaningfully decrease the politicization of Supreme Court appointments. The best way to do that would be for judges to agree to confine themselves to the limited judicial role envisioned by the Framers.
Please join us on Thursday, November 14 at 11:45 a.m. ET as the Litigation Practice Group presents Is It Time to End Life Tenure for Federal Judges? to discuss this topic. The panel will be live streamed on the Federalist Society website.