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
@Steve: They're not mutually exclusive, but I don't favor the reforms of the judiciary that you have recommended for reasons already given.
Posted by: Jeremy Telman | July 09, 2019 at 06:06 PM
Howard
Yes, it is true that in 2009 "a group of 33... headed by Duke University's Paul Carrington" recommended "four proposals for reform of the federal judiciary, and in particular, the Supreme Court. ... Not all of the participants supported all four proposals."
Similar arguments were made in 2005.
Why is this letter different? First, "The letter does not advocate any of the several plans that have lately been suggested." Second, it is just a polemic that rings all the bells that the haters want to hear while advocating really nothing at all other than "revisiting life tenure" on the SCOTUS, which is unrelated to the ills advanced by the letter.
This letter is, actually, just a seemingly inadvertent attack on the Senate -- IMHO, the Democrats in the Senate.
Posted by: anon | July 09, 2019 at 06:13 PM
Anon,
In your zealous attempt to prove that all Democrats are monsters and responsible for all the ills of the world, you neglected to recall that Harriett Miers' nomination was derailed by Republicans. They sought a nominee with the type of conservative bona fides that would assure that the nominee would not drift left.
Posted by: Anonprof | July 10, 2019 at 02:23 PM
Anonprof
Agreed. Democrats are unlikely to fault one of their own. JFK spoke about how Republicans love to follow. Let's just say that AOC stands out today because she is such an exception to the new rules.
I find much fault both parties, but, I try to do so on legitimate bases. Because on this site one rarely finds any criticism of a Democrat or a Democratic proposal (or, even more clearly, a proposal from "the Left"), it appears to be established that there is a bias on this site. That bias leads to some fairly slanted attacks and the sort of obvious effort to avoid many truths (e.g., there is at least an arguable case that the Dems are much more likely to create the nomination circuses to which the letter referred, yet most readers seem to understand the reference to be to "the era of Trump"). To this bias, and the sweeping under the rug of underlying truths that any such bias attempts to achieve, I object.
As for the "merits" of your comment, it is, as usual on this site, the sort of emotional lashing out (you start, "you're so bad, anon") that misstates or mischaracterizes or misleads in order to smear a commenter, not the comments.
Sure, republicans questioned the nomination. But, to say that was the "sole" reason the nomination was derailed is, well, sort of simplistic and untrue.
A few facts: Senate Judiciary Committee Chairman Arlen Specter and ranking Democrat Patrick Leahy joined in asking for more information from the nominee. Republican Senators Lindsey Graham and Sam Brownback began drafting a letter asking the President's office to turn over legal memoranda and briefs Miers had written for Bush, in order to elucidate her views on political matters. An unseemly s... storm, like we just saw, was brewing.
The fact is, however, that when Senator Charles Schumer (D-NY) predicted she would fail confirmation, Specter, the committee chairman, rejected the notion that Miers's nomination was shaky.
In any event, Democrats, of course, were as rabidly hateful about Bush as about Trump (and Reagan and Nixon and Romney and any other republican). Any defeat of a republican is even more celebrated by the Dems if some republican agreed with it: Goldwater told Nixon to resign, etc. Dems love it when Republicans throw Republicans under the bus.
So what? What does that prove?
The fact that that a republican nomination failed I'm sure is purely delightful for you, but your comment is just an attack without substance, and has nothing whatsoever to do with the topic of this thread or any comment by me above.
Posted by: anon | July 10, 2019 at 03:04 PM
I only read comments by folks who use their actual names (& have long felt that all the various "anons" should be banned), but I was asked (twice) to sign the letter & declined to, even after significant revisions were made, because (1) I felt its tone excessively cast the Court as 'political' (& that was even *before* some of the unusual 5-4s we saw late in this past term), and (2) because as anyone familiar with the Carrington volume knows, while I have long (since my 2000 U. Chi. L.R. article, "Mental Decrepitude on the U. S. Supreme Court") supported a Con. Amend. imposing a mandatory retirement age (ideally 75), I also believe that Paul & Roger Cramton's 18-year-fixed-terms proposal would *further* the partisan politicization of high court nominations. In my view the #1 problem is overly elderly justices & the heightened risk that such justices will 'hand off' even more of their Article III powers to their excessive number of 20-something law clerks. Cf. my 2005 Legal Affairs article on HAB.
Posted by: Dave Garrow | July 10, 2019 at 05:04 PM
Suzanna Sherry has a paper forthcoming in Texas arguing that term limits and regular appointments would produce potential wild partisan swings: https://courtslaw.jotwell.com/the-supreme-court-is-broke-the-question-is-how-to-fix-it-alternatives-to-term-limits/
Posted by: Howard Wasserman | July 12, 2019 at 11:43 AM