It's Time to End Life Tenure on the Supreme Court

I am among the signatories to the following letter, circulated by Fix the Court, endorsing the idea of a constitutional amendment to end life tenure for Supreme Court justices. The letter does not advocate any of the several plans that have lately been suggested, but let me note that ending life tenure is a non-partisan proposal that has been advanced by conservatives and liberals alike, as in this article by my colleagues Steven Calabresi and James Lindgren.

To our fellow Americans:

Our nation has embarked on another campaign season in earnest, and soon we will encounter the predictable stream of ad hominem attacks and negative ads that comes with it. Sadly, the process by which we nominate and confirm Supreme Court justices could be described in the same manner.

This should not come as a surprise. With life tenure, each nomination is cast in apocalyptic terms, as neither party knows when its presidents will have another opportunity to make an appointment. The court itself is not blameless, as in recent years it’s handed down what many Americans see as overtly political decisions, typically with 5-4 votes.

There is no easy way to move us out of this dynamic, but it has become clear to us that a strong step in the right direction would be to revisit life tenure at the Supreme Court.

We choose not to endorse any particular plan here, so long as terms are sufficiently long to maintain judicial independence. But we believe that continuing to concentrate power in the hands of a few individuals, who sit for many decades with almost no oversight and little incentive to compromise, is no longer good public policy, if it ever was. A court seen by most Americans as a political actor, whose very legitimacy is routinely questioned, and whose appointment process has devolved into farce, is in need of fixing.

We hope that voters – and by extension, those running in 2020 – will join us in considering the best way to move the country toward a healthier constitutional balance and shift the Supreme Court away from its current role as a battleground in our partisan wars.

Respectfully,

The full list of signatories follows the jump.

David Abraham, Professor of Law Emeritus, University of Miami School of Law

Jeffrey Abramson, Professor of Law & Government, University of Texas at Austin School of Law

Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School

Neal Allen, Chair and Associate Professor of Political Science, Wichita State University

William Araiza, Professor of Law, Brooklyn Law School

Sahar Aziz, Professor of Law, Rutgers Law School

Asli Bâli, Professor of Law, UCLA School of Law

Ian Bartrum, Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law

Carl Bogus, Professor Law, Roger Williams University School of Law

Harold Bruff, Nicholas Rosenbaum Professor of Law, University of Colorado Boulder Law School

Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California Berkeley School of Law

Robert Cooter, Herman F. Selvin Professor of Law, University of California Berkeley School of Law

Mary Dudziak, Asa Griggs Candler Professor of Law, Emory University School of Law

Sam Erman, Professor of Law, University of Southern California Gould School of Law

David Faris, Associate Professor of Political Science, Roosevelt University

John Ferejohn, Samuel Tilden Professor of Law, New York University School of Law

Mary Anne Franks, Professor of Law, University of Miami School of Law

Stephen Gillers, Elihu Root Professor of Law, New York University School of Law

Ellen Goodman, Professor of Law, Rutgers Law School

Robert Gordon, Professor of Law, Stanford University

Jamal Greene, Dwight Professor of Law, Columbia Law School

Stephen Griffin, Rutledge C. Clement Jr. Professor in Constitutional Law, Tulane University Law School

Joseph Grodin, former Associate Justice, California Supreme Court; Professor of Law Emeritus, University of California Hastings College of the Law

Dennis Hutchinson, Senior Lecturer in Law, University of Chicago Law School

John Inazu, Sally D. Danforth Distinguished Professor of Law and Religion, Washington University in St. Louis

Ted Kaufman, former U.S. senator, D-Del.

Richard Kay, , Wallace Stevens Professor of Law Emeritus, University of Connecticut School of Law

Raymond Ku, Professor of Law, Case Western Reserve University School of Law

David Landau, Mason Ladd Professor, Florida State University College of Law

Carlton Larson, Professor of Law, UC Davis School of Law

Michael Lawrence, Foster Swift Professor of Constitutional Law, Michigan State University College of Law

Brian Leiter, Karl N. Llewellyn Professor of Jurisprudence, University of Chicago Law School

Gerald Leonard, Professor of Law, Boston University School of Law

Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School

Sandford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas at Austin School of Law

Steven Lubet, Edna B. and Ednyfed H. Williams Memorial Professor of Law, Northwestern Pritzker School of Law

Thomas McAffee, William S. Boyd Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law

Thomas Metzloff, Professor of Law, Duke University School of Law

Alan Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law

Samuel Moyn, Henry R. Luce Professor of Jurisprudence, Yale Law School

Philip Oliver, Byron M. Eiseman Distinguished Professor of Tax Law, University of Arkansas Little Rock William H. Bowen School of Law

Norm Ornstein, Resident Scholar, American Enterprise Institute

Richard Parker, Paul W. Williams Professor of Criminal Justice, Harvard Law School

Joel Paul, Professor of Law, University of California Hastings College of the Law

Michael Perry, Robert W. Woodruff Professor of Law, Emory University School of Law

Harold Pollack, Helen Ross Professor, University of Chicago School of Social Service Administration

Lucas A. Powe Jr., Anne Green Regents Chair in Law, University of Texas at Austin School of Law

Richard Primus, Theodore J. St. Antoine Collegiate Professor of Law, University of Michigan Law School

Aziz Rana, Professor of Law, Cornell Law School

William Reynolds, Jacob A. France Professor Emeritus of Judicial Process, University of Maryland Francis King Carey School of Law

Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

Peter Schuck, Baldwin Professor of Law Emeritus, Yale Law School

Herman Schwartz, Professor of Law, American University Washington College of Law

Eric Segall, Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

Matthew Seligman, Visiting Assistant Professor of Law. Yeshiva University Benjamin N. Cardozo Law School

Theodore St. Antoine, James E. and Sarah A. Degan Professor of Law Emeritus, University of Michigan Law School

Joan Steinman, Professor of Law Emerita, Illinois Institute of Technology Chicago-Kent College of Law

Gerald Torres, Jane M.G. Foster Professor of Law, Cornell Law School

Laurence Tribe, Carl M. Loeb University Professor, Harvard Law School

Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

Adam Winkler, Professor of Law, UCLA School of Law

Mary Ziegler, Stearns Weaver Miller Professor, Florida State University College of Law

Comments

[D. A. Jeremy Telman]

This is an impressive list of signatories. Since the letter only suggests that we revisit life tenure and offers no specific alternatives, I assume that the idea is just to spark a discussion. I have a few thoughts:

I would not be inclined to revisit life tenure. I understand the Constitution to set out a considered balance between the democratic accountability and independence of federal office-holders. There are reasons why we have Representatives who must sit for election every two years, Presidents who sit for four years, Senators elected for six, and federal judges who have life-time appointments. The design creates the impetus for legal changes as well as brakes on political impulses that raise serious constitutional (as well as practical) concerns. The constitutional design has served us well, even as it strains under the pressures of bad faith actors who manipulate its flaws. In my view, the federal judiciary is the least broken element of that design.

Moreover, I don’t think that eliminating life tenure would address the problems that the letter identifies. I agree that the Court’s legitimacy as a body that decides cases based on law rather than politics has been undermined by some of its opinions, but that is nothing new. I haven’t looked at recent polls, but it is usually the case that Americans nonetheless think more highly of the Court (and the judiciary generally) than they do of the political branches. Removing life tenure would inevitably heighten the politicization of the appointments process and decrease the judiciary’s independence and hence its legitimacy as a legal rather than a political body. If the appointments process has “devolved into a farce,” fix the political branches, not the Constitution.

While I agree that there is “no easy way to move us out of this dynamic,” there are reasonable steps that would be more effective than the elimination of life tenure and are far easier to achieve than a constitutional amendment. The most obvious step is a return to the requirement of bipartisan approval of nominees by restoring the 60-vote cloture requirement. If Presidents and Senate majorities know that they have to produce nominees who can pass cloture, they are more likely to seek out independent-minded jurists rather than ideologues.

The harder step is to change the political culture. Our country is narrowly divided. Presidents who win just over (or just under) 50% of the popular vote should not treat their victories through the electoral college as a mandate to ignore the passionate concerns of the other half of the country. Presidents should either appoint centrists or engage in the hard work and horse trading necessary to make certain that the members of the federal judiciary represent the spectrum of legal opinions of the country as a whole.

I find the letter misleading when it speaks of the court as subject to “almost no oversight” and with “little incentive to compromise.” Courts are subject to oversight because Courts must publish opinions in which they justify their legal judgments. Oversight comes in the form of dissenting opinions, lower courts decisions that run away from poorly-reasoned precedents, legal journalism, legislative checks, the specter of impeachment and, dare I say it, the specter of criticism from the legal profession and the legal academy. Judges, even Justices with life tenure, care a great deal about their reputations. That concern for their reputations is one of many reasons why not all of the current Court’s 5-4 decisions fall along predictable party lines, not to mention the overwhelming majority of cases in which the Justices do indeed compromise and reach consensus and even unanimity.

I’ll leave it at that and let others continue the discussion that this letter so helpfully inspires.

[Steve L.]

Thanks for commenting, Jeremy. Why wouldn't staggered 18 year terms -- as proposed by Calabresi and Lindgren -- provide a sufficient guarantee of independence?

Beyond that, I fear that a change in political culture will be harder to achieve than a constitutional amendment. Calling on presidents to "appoint centrists" is a fine goal, but it has been explicitly repudiated by one political party and it is highly unlikely that the other will unilaterally disarm.

In the meantime, perfect is the enemy of good. The objective of independence can be realized without life tenure. Abolishing life tenure would remove the incentive both for strategic retirement and hanging on too long.

[D. A. Jeremy Telman]

Hmmm. I think the system we have now is good but imperfect. It is hard for me to imagine an alternative that is less imperfect and more good. If judges are appointed for fixed terms, Presidents (and their allies in the Senate) are likely to feel all the more empowered to spend "earned" political capital and appoint a Justice based on political ideology rather than legal acumen. The process would become more overtly political and the Court's legitimacy would suffer.

[anon]

No surprise here. This isn't "non partisan" or "bi partisan" ... it is function of the Left sensing that it is losing the court. it's that simple.

Prove up a similar letter under Obama.

In fact, a sentence in one of the comments above demonstrates the point quite clearly:

"Presidents who win just over (or just under) 50% of the popular vote should not treat their victories through the electoral college as a mandate to ignore the passionate concerns of the other half of the country."

Exhibit A: the ACA. Progressives (yes, there are "conservatives" who fall into this camp) are taking a scorched earth approach to the government (always have). Wilson didn't like the Constitution much, and the Progressives have always seen the court as a tool to be discarded if not useful.

The goal of "progressives" is to undermine the existing government and society (by any means necessary) and replace these with a utopia: governed in every minute detail by ... you guessed it: the progressives. They will govern every aspect of your life.

You may feel that is no problem if everyone you know agrees with you about what "they" should or shouldn't do.

[D. A. Jeremy Telman]

Seems to me that I am on the side of arguing for the good and that you and your co-signatories are attempting to perfect the imperfectible.

[Anon]

"The goal of "progressives" is to undermine the existing government and society (by any means necessary) and replace these with a utopia: governed in every minute detail by ... you guessed it: the progressives. They will govern every aspect of your life."

Good thing conservatives are immune to the temptation to tell others how to live their lives.

Oh wait.

[Paul Horwitz]

I sympathize with the worry about fair-weather friends of term limits on the Court, but some people, myself included (although I’m not a signatory to this and won’t be) have favored it regardless of the appointing president and in part to make the accident of appointing president less accidental and more routine. The sentence you quote seems absurd if applied inconsistently—as it surely is—or as a fixed rule, but also like good advice if one cares about governing rather than momentary results.

[anon]

Anon

Two wrongs don't make a right.

Weak argument.

[Steve L.]

Paul: Jim Lindgren and Steve Calabresi are both conservatives. Steve was a co-founder of the Federalist Society and is chair of the board of directors. He has advocated abolishing life tenure since the early 2000s.

[anon]

Paul

"The sentence you quote seems absurd if applied inconsistently—as it surely is-- ... but also like good advice if one cares about governing rather than momentary results."

Agreed.

I deleted: "—or as a fixed rule")

Presidents should take into consideration the views of "the other half" -- indeed, the polity -- no?

"Progressives" have convinced themselves that they no longer need to listen to nearly 50% of the country. The argument started with their abandoning the notion of "fairness" and "objectivity."

One hears a version of this argument constantly. "If global climate change is a fact, why should we report the views of others that don't believe the science?" "Why should we take into account the views of racists, homophobes, etc.?" (Remember, the categories into which one falls change constantly.)

The "progressives" are, simply stated, zealots who believe that they are right about everything, and that anyone who disagrees should be ignored -- or silenced.

Hence, the effort to do away with the constitution, which is decidedly anti-majoritarian in many respects (see, e.g., Bernie arguing that "we" can "reassign" justices of the SCOTUS; efforts by Clinton and others to undermine the electoral college, the apportionment of Senators, the Second Amendment (as interpreted by the SCOTUS), the First Amendment (see, e.g. "foreigners" can be selectively prosecuted for speaking about elections, rage against Citizens United, etc.) If one goes thru the platform on the Left ascendant in the Democratic Party, one finds a distinct antagonism to the constitution.

BTW, the Republican Party has its faults, as do all human endeavors. But a.) I don't hear it as constantly attacking the constitution and b.) a check on the progressive goal of totalitarian control (I know, you can't see it, but it's there) is necessary.

[anon]

The advocacy by a few law professors of the need for a constitutional amendment - especially in isolation -- proves absolutely nothing about any group with which those professors are associated.

[anymouse]

I have a feeling that if HRC won the presidential election in 2016 (which she didn't because in her infinite wisdom, she failed to spend time in Wisconsin, Michigan, and Pennsylvania), we wouldn't see this letter.

Just a hunch.

[anon]

From the Hill:

"A Sanders spokesperson told The Hill that Sanders's plan to reform the courts "would be to rotate Supreme Court justices down to circuit courts after a set term limit, serving out the remainder of their lifetime appointment in lower courts." "Bernie believes if we were to pack the court, Republicans would simply do so the next time they gained power," the spokesperson said. "Bernie's plan would only require an act of Congress."

A Socialist society cannot co exist with the US Constitution: private property, free speech, no government taking, etc. make impossible the dreams of installing an enlightened vanguard into positions of absolute authority, a prerequisite to the ultimate transition to communism.

Persons may agree that a certain "reform" is necessary for different reasons. But, a signal that there is something very absurd about the proposal above is the claim that it will "shift the Supreme Court away from its current role as a battleground in our partisan wars" and stop Senators from Borking republican nominees.

As Justice Roberts recently observed (commence howling and gnashing of teeth at the mention of his name), in voting against a presidential initiative to do something that is without doubt permitted by the Constitution because he didn't like the way the "reason" was articulated, the proposal above seems a bit "contrived."

[Steve L.]

Sorry about the delay on your comments, Jeremy; they were stuck in the spam folder.

You wrote: "If judges are appointed for fixed terms, Presidents (and their allies in the Senate) are likely to feel all the more empowered to spend "earned" political capital and appoint a Justice based on political ideology rather than legal acumen. The process would become more overtly political and the Court's legitimacy would suffer."

Why would a president be more inclined to spend political capital on a fixed term than on a lifetime appointment? The lifetime appointment would be worth more, and therefore worth spending more capital.

The virtue of the staggered 18 year terms proposed by Lindgren and Calabresi is that there would be a new appointment every two years, meaning two per presidency. Thus making them more routine and less momentous.

Finally, when is the last time a justice was nominated solely on the basis of legal acumen (and what does that mean, anyhow, it the context of a SCOTUS appointment)?

[PaulB]

A less radical change than the 18 year term limit would be a mandatory retirement age of 70 or 75. Douglas was sufficiently out of it as he tried to outlast Nixon that the other judges decided that no decision would be issued in which his vote was deciding (kudos to Marshall and Brennan for their support of this). Marshall in turn stayed well beyond his time during Reagan and Bush and effectively gave his votes and decisions to his clerks who in turn carefully chose their replacements.

As to Steve's question of "legal acumen", we all know how law school professors define that. In an effort to get away from what's happened to the Supreme Court under both parties for the last generation, let me suggest for starters that no Supreme Court clerk be nominated by either party.

[anon]

So, we've come to the point where a professor of law doesn't know what "legal acumen" means in the context of the appointment of a judge.

Let's start with plain meaning, as "conservatives" so horribly recommend (in the view of progressives, who lack any sense of meaning and deal only with power). "Legal acumen" means "the ability to make good judgments."

As has long been recognized, appointment to the Supreme court requires not only academic success (unfortunately defined as law professors tend to define, which means Harvard or Yale, generally) but also, again usually, some combination of nice resume items (law review, judicial clerkships) and, modernly and more frequently, judicial experience, as well as some modicum of "public service."

In addition to all this, a SCOTUS nominee must be able to endure humiliation by the Democrats, yes, the Democrats, if appointed by a Republican. (Ok, cite the absence of a hearing for Garland, but the hearings for Democratic nominees have been nowhere near, generally, the circuses of personal attacks led by the Democrats. Compare, e.g., Ginsburg (96–3), Breyer (87–9), Kagan (63–37), Sotomayor (68–31) with Bork (no vote), Miers (no vote), Thomas (52–48), Alito (58–42) and Kavanaugh (50–48). (They gave Gorsuch (54–45)a bit less of the acid in your face treatment during the hearings, because that was seen as a done deal and not a consequential as the next seat.)

So, after all this, an assessment is made about the ability to "make good decisions" ...

That is what is meant by "legal acumen" in the context of SCOTUS appointments.

Of course, justices should not be4 chosen based on the ability to bend the law to the purpose of overthrowing what some perceive to be the existing inequitable nature of this society. That is not "legal acumen" in the truest sense, IMHO.

Is the way that the SCOTUS has interpreted the Constitution merely a way to preserve white privilege? Is the Constitution itself a document produced by and for racists? Do judges need to reinterpret its provisions to supply social justice?

If your answer to these questions is "yes" then you don't know what legal acumen means.

[D. A. Jeremy Telman]

Did I say "solely" based on legal acumen? Surely not.

The problem I see with the proposal is that it concedes that the appointments are primarily political. Presidents will then seek to appoint people who support their current political agendas and their supporters will howl in protest if they compromise by appointing someone who will less clearly toe the party line. For them, the purpose is to stack the Court for the next 4-8 years. Nobody can predict what the hot-button issues will be 15 years hence, and so, from the perspective of cashing in on political capital, the 18 year term limit is irrelevant. And if the Court moves more in the direction of being a political body, stare decisis loses its ability to dampen the political winds.

Nor do I think that Supreme Court appointments become less momentous when two-term Presidents automatically get to make four of them.

It's not that I don't see any advantages to the proposal. There would be trade-offs. My main point is that the branch we really need to fix is not the judiciary but Congress.

[anon]

Correction:

Bork (42–58)

[Steve L.]

Jeremy wrote: "My main point is that the branch we really need to fix is not the judiciary but Congress."

Conceding that, why are the two objectives mutually exclusive?

[Howard Wasserman]

A group of law professors, led by liberal Paul Carrington, was pushing this in February of 2009:

https://balkin.blogspot.com/2009/02/reforming-supreme-court.html