Where John Ashcroft and Merrick Garland meet
By Gabe Roth, Fix the Court executive director
St. Louis Post-Dispatch
June 10, 2016
Former Missouri Gov. and U.S. Attorney General John Ashcroft’s name stirs a lot of passions in this state, but it is also a name that should be swirling around the heads of those interested in the ongoing U.S. Supreme Court vacancy.
This month marks the 25th anniversary of the high court’s decision in Gregory v. Ashcroft, in which a seven-justice majority (including Justices Antonin Scalia and Anthony Kennedy) held that Missouri’s mandatory retirement age for state court judges did not violate federal law or the U.S. Constitution.
State judges Ellis Gregory Jr. and Anthony Nugent Jr., who brought the suit, did not want to step down once they turned 70, and Ashcroft, then governor, defended Missouri’s mandatory retirement provision.
This decision is noteworthy a quarter-century later because it has implications for the Supreme Court’s current makeup. If a mandatory retirement age for the justices — say 70 or 75, like in many other modern democracies — were in place, we would more readily know when the justices would be leaving the bench. That means we wouldn’t be experiencing the acute political and judicial crises caused by the death of a near-80-year-old in failing health. (Fixed terms for the justices would also have solved the problem.)
But what can be done today? One suggestion is for Republicans in the U.S. Senate — who have been holding up President Obama’s nominee, Merrick Garland — to tie the confirmation to the passage of a law that would require a mandatory retirement age of 70 for prospective justices, starting with Garland. That way, Obama’s nominee, who is 63, would serve only for seven years, and President Paul Ryan or Elizabeth Warren, or whoever beats a President Trump or a President Clinton in 2020, would pick his replacement.
The next question readers may ask is whether such a law would be constitutional. I believe so, and here’s why.
The Constitution gives Congress wide latitude to make laws about federal courts. Lawmakers appropriate money for the judiciary each year and may even change the number of justices who sit on the Supreme Court. (The Constitution says nothing about nine justices, and at times in the 18th and 19th centuries, the high court, in fact, had an even number.)
In the past, legislation that has aimed to increase accountability at the high court has passed constitutional muster, as was the case when the justices declined to hear a challenge to a 1978 law requiring federal judges to disclose their finances annually, which they do to this day.
Here’s legal scholar and University of Chicago Law Professor Todd Henderson’s recent quippy take: “My dad is 76 years old now. I’m not sure I’d want him being a Supreme Court justice into his 80s.”
If Professor Henderson’s father was, in fact, a high court judge in almost any other modern democracy, he would already have been pushed into retirement. Germany requires its justices to leave the bench at age 68. In the United Kingdom, it’s 70, while in Canada and Brazil, it’s 75. Japan doesn’t have a mandatory retirement age, but its high court judges must stand for retention elections every 10 years. Judges in more than 30 states have a mandatory retirement age, with nearly all the rest having term limits.
The U.S. Supreme Court remains alone in allowing its judges to serve for life. But with people living longer than ever and with justices feeling inclined to stay on the bench long past their primes, life tenure at the high court is no longer rational.
Call the effort to give President Obama’s nominee and future nominees a mandatory retirement age the Garland Rule if you like. Or call it the Ashcroft Rule.
Either way, ensuring that our high court justices aren’t serving decades on end presents an important way for the world’s first modern democracy to, in a twist, play much needed catch-up to democracies the world over and reduce the tenure of our highest legal officers.