The Kavanaugh confirmation, coupled with a spate of prolonged tenures, has reinvigorated the national debate over life tenure at the Supreme Court.
And that’s a debate we’d like to have. For years, Fix the Court has said that unaccountable officials serving for decades on end and ruling on our country’s most important issues is likely not what our Founders intended when copying and pasting English phrasing on judicial tenure from 1701 into Article III of the Constitution.
The vast majority of the country (78% according to our latest poll) now agrees that life tenure is problematic. Don’t take our word for it; here’s what the justices themselves have to say on the topic:
Justice Elena Kagan, Oct. 24, 2018: “Could you do [tenure] with sufficiently long terms—18 years seems to be the going proposal—maybe. I’m not saying that there’s nothing to proposals like that. I think that what those proposals are trying to do is to take some of the high stakes out of the confirmation process, and certainly to the extent that that worked, and that people could feel as though no single confirmation was going to be a life or death issue, that that would be a good thing. So I think it’s a balance among good goals.”
Justice Stephen Breyer, Jan. 7, 2016: “I do think that if there were a long term—I don’t know, 18, 20 years, something like that, and it was fixed—I would say that was fine. In fact, it’d make my life a lot simpler, to tell you the truth! It would! […] The thing you don’t want – you don’t want a term that is so short that the person sitting there is thinking about his next job – absolutely out. And as long as you can overcome that, then fine, fine.”
Chief Justice John Roberts, Oct. 3, 1983: “There is much to be said for changing life tenure to a term of years, without possibility of reappointment. The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for 25 or 30 years was a rarity then, but is becoming commonplace today. Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.”
We know that the Founders incorporated life tenure to try to shield those serving on the court from the political pressure. No one doubts that today’s justices, however, are polarized along partisan lines in a way that mirrors our other broken and gridlocked political institutions. The President and the Senate may change, but with lifetime appointments, the razor-thin, politically predicable, outcome determinant rulings aren’t. The justices will stick to their corners and push their personal politics in irreversible ways that affect our everyday lives.
So how can we hold the justices accountable to the Constitution and to their ethical obligations while ensuring that they remain independent from the politics of the day? Our answer is this: a single, standard 18-year term. Limiting justices’ tenures would solve two key problems that have led to the harmful polarization we see today:
Justices now serve longer than at any point in American history. When the Constitution was written, those in power were expected to return to private life after a certain time (cf., Washington, George). Nowadays justices serve until a President with whom they tend to agree sits in the Oval Office, meaning some hold onto their seat until the “right” person is elected. Case in point: justices who sat on the court pre-1970 served about 14 years apiece. Since then, the average tenure is 27 years.
Life tenure has turned Supreme Court nominations into a political circus. It’s no longer a priority to find the best candidate for the job – a candidate who will serve with integrity and who has experience outside of an appellate courtroom. Instead, the party in charge scrambles to find the youngest, often most ideological nominee (who, at the same time, knows to say the right things at a confirmation hearing) in order to control the seat for decades to come.
A single, standard 18-year term at the high court would, to paraphrase Chief Justice Roberts’ 1983 memo, restore limits to the most powerful, least accountable branch of American government, increase the rotation of justices serving and broaden the pool of potential nominees – all positive outcomes no matter where you see yourself on the political spectrum.