“There is a fullness of time when men should go,” Mr. Warner, an 80-year-old Republican, said in a graceful farewell that recalled the very different departure from the Washington stage of another powerful 80-year-old two years earlier.
Chief Justice William H. Rehnquist died over Labor Day weekend in 2005, 10 months after receiving a diagnosis of an invariably fatal form of thyroid cancer. During most of that time, he had been widely expected to announce a decision to retire, but he kept even most colleagues in the dark about his condition and plans until declaring six weeks before his death that he intended to stay on.
Whether he displayed brave optimism or “a degree of egoistic narcissism,” as Prof. Sanford Levinson of the University of Texas Law School asserted in a recent book, is open to debate. With the protection of life tenure, the decision to play through was, in any event, completely the chief justice’s own.
But it is beyond debate that interest in re-examining the wisdom of the Constitution’s grant of life tenure to Supreme Court justices, a lively topic at the time of Chief Justice Rehnquist’s illness and death, has continued to grow.
The interest, admittedly, remains largely limited to the corridors of law schools and university political science departments. No member of Congress or candidate for office has taken up the call. But the range of scholars across the ideological spectrum who are pushing or endorsing various proposals for restricting justices’ tenure is impressive, numbering in the dozens of leading conservatives and liberals.
In fact, with the Supreme Court itself sharply polarized, one of the few things that this array of experts might be able to agree on three weeks before the start of the new term is that life tenure may no longer be what Alexander Hamilton called “the best expedient which can be devised in any government” to protect judicial independence.
One reason for the growing consensus is that the practical meaning of life tenure has changed dramatically in recent years. Between 1789 and 1970, according to statistics in an article by Profs. Steven G. Calabresi and James Lindgren of Northwestern University Law School, Supreme Court justices served an average of just under 15 years, with vacancies on the court occurring about once every 2 years.
Since 1970, justices have served nearly twice as long, more than 26 years, with the average interval between vacancies stretching to more than 3 years. (Life tenure today, of course, has a dimension that would surprise the Constitution’s framers; since 1900, the average life expectancy, now 77 years, has increased by 30 years.)
The various proposals differ in big and small ways, although staggered 18-year terms of active service is clearly the most popular choice among those advocating change. Once fully phased in, 18-year terms would permit presidents to make a Supreme Court appointment every two years. The proposal, made by the two Northwestern professors in an article published last year in the Harvard Journal of Law and Public Policy, would require a constitutional amendment, they believe.
Two other advocates for change, Profs. Roger C. Cramton of Cornell Law School and Paul D. Carrington of Duke Law School, say the same result could be accomplished by legislation; their proposal, which they call the Supreme Court Renewal Act, has not found a sponsor. After 18 years, justices would move to senior status, retaining the perquisites of federal judges but no longer hearing cases except to fill in for vacancies.
Meanwhile, each president would get to make two Supreme Court appointments during a four-year term. As the court grew, the nine most junior members would serve as the active justices.
Professors Cramton and Carrington convened a conference at Duke on their proposal and were co-editors of a book on it, “Reforming the Court,” published last year.
Judges of the Federal District Courts and Courts of Appeals also enjoy life tenure. But the various proposals leave the lower courts alone, on the premise that life tenure brings problems that are specific to the Supreme Court.
One is that widely spaced departures (there were none from 1994 to 2005) tend to make each vacancy an earthshaking event, while predictably regular vacancies would lower the temperature. Another is that the broadly perceived tendency of justices to time their retirements for political reasons increases public cynicism about the court.
A third reason is that fixed terms would erase the political premium on appointing justices at young ages. Republicans, especially, prize youth and the long Supreme Court tenure it promises. The average age of the last five Republican appointees was 50; the last five justices named by Democratic presidents were, on average, 56 ½.
Few other legal systems have taken American-style life tenure as a model. Most countries place term or age limits on their high-court judges, as do 49 states (all but Rhode Island). That fact “demonstrates that there is not the slightest need to grant life tenure in order to guarantee an independent judiciary,” Professor Levinson of Texas wrote last year in his book “Our Undemocratic Constitution.”
But not everyone is convinced. Prof. Vicki C. Jackson of the Georgetown University Law Center, a leading authority on the federal judiciary, warned in an article this year that rather than cooling the politics of Supreme Court confirmations, fixed terms might simply “turn an episodic fracas into a regular one.”
In any event, change hardly appears imminent. “This will probably have to percolate for a couple of decades,” Professor Lindgren said, “before people realize what a good idea it is.”