John Whitehead's Commentary
Curtailing the 'Least Dangerous Branch': Term Limits for Supreme Court Justices
President Bush's announcement that he is nominating 50-year-old appellate judge John G. Roberts to fill the vacancy left by Sandra Day O'Connor is an excellent opportunity to reopen the discussion on term limits for U.S. Supreme Court Justices. And with 80-year-old William Rehnquist determined to remain as Chief Justice, this is an issue whose time has come. As Jeff Jacoby recently wrote in the Boston Globe (May 26, 2005): "No president can hold power for more than eight years, but the most junior member of the current court--Stephen Breyer--has already been there for 11 years. Two others, John Paul Stevens and Rehnquist, have been on the court for more than 30 years." Given Roberts' age, if confirmed, he could end up serving on the court longer than any other justice in history.
Article III of the Constitution states that "judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior." This somewhat ambiguous line has been interpreted to mean that federal judges may hold their judicial offices for life unless removed from office by impeachment and conviction.
Life tenure for federal judges has been part of our constitutional system since the framing of our Constitution. Alexander Hamilton was the leading proponent of this provision in the Constitution. He argued that life tenure was essential to assuring the absolute independence of the judiciary from the influence of the political branches. Of course, Hamilton also described the judiciary as "the least dangerous branch" since it exercised no force or will but only judgment. But today, many are concerned that the federal judiciary has become the most powerful branch, acting as an unaccountable, quasi-legislative body.
Recently, Hamilton's assertions that lifetime tenure is necessary to securing judicial impartiality and independence have been challenged. Certainly, the judiciary is no longer considered the least dangerous branch.
The role of the modern Supreme Court is much different than originally intended by those who drafted the Constitution. The Court today routinely decides cases of great magnitude. These include school desegregation, state electoral districting schemes and even the outcome of a presidential election. And the Court enters the "political thicket" with increasing frequency. Problematic consequences have arisen as Justices have grown in power, become more invested in their decisions and inserted themselves in the "culture wars."
Major political leaders from many eras and persuasions have proffered arguments against lifetime tenure for federal judges. These include such diverse figures as Thomas Jefferson, Andrew Johnson, John F. Kennedy, George H. W. Bush and Senators Orrin Hatch and Dan Quayle. Jefferson advocated four- or six-year terms for federal judges. Andrew Johnson urged twelve-year terms. And Dan Quayle proposed fifteen-year terms.
There are some persuasive arguments against life tenure for judges. Lifetime tenure, for instance, vastly increases the stakes in filling each Supreme Court (and lower federal court) vacancy. Senate battles over judicial nominations would not be so bitter if the consequences of losing were not likely to persist for decades. Supreme Court justices are also tempted by the current arrangement to time their resignations for political reasons--often holding onto their position through bad health until a like-minded president is in office. Life tenure as well encourages presidents to nominate younger candidates with minimal paper trails and maximal potential to shape the future, thereby passing over more experienced individuals whose resumes might trigger an ideological assault. Moreover, life tenure deprives the judiciary of regular infusions of "new blood," especially given the fact that judges are living, and thus serving, much longer. The result of this is a decrease in intellectual vigor and awareness of contemporary culture among some judges. What's more, life tenure allows bad judges to remain on the bench indefinitely, and it allows even very good ones to remain on the bench when they are no longer doing their best work.
Life tenure clearly does not insulate federal judges from political pressures. In fact, it encourages Supreme Court Justices to be overly mindful of politics, particularly the partisan political landscape of the White House and the Senate, in deciding when to retire. The average age at departure for Supreme Court Justices from 1789 to 1970 was 68.5 years. From 1971 to 2000, it was 78.8 years. And during those same periods, the average time served by a Justice rose from 15 years to 25.5 years. Thus, mental incompetence has become a more pressing issue within the last 100 years.
The most obvious method of implementing term limits for Supreme Court Justices is by amending the Constitution. Another would have the Senate insist that all future Court nominees publicly agree to term limits or risk nonconfirmation. While legally unenforceable, such commitments by justices would likely be honored.
Along this line, several proposals have been offered. Possibly the most appealing is one that would amend the Constitution to limit Supreme Court Justices to 18-year, non-renewable terms, with one expiring every two years. If a Justice left the Court prior to the expiration of his/her term, the President would nominate (and Senate confirm) a "replacement" Justice who would only serve for the remainder of the retiring Justice's term. Under no circumstances could a Justice--even a "replacement" Justice who only served for a short period of time--be reappointed to the Court. Once the Justices' term expired, each former Justice would be permitted to serve for life on the lower federal court of his choice. Arguably, this system will remove the problems of strategic retirements, incentives for young nominees and unfairly distributed appointments.
Regardless of the details of the solution, there are a growing number of scholars who believe that the dire predictions of "Brutus," one of the leading anti-federalists of the Founding period, have come true: life tenure has placed judges "in a situation altogether unprecedented in a free country," rendering them "independent, in the fullest sense of the word. There can be no power above them to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and every power under heaven.... Men placed in this situation will generally soon feel themselves independent of heaven itself."
Article III of the Constitution states that "judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior." This somewhat ambiguous line has been interpreted to mean that federal judges may hold their judicial offices for life unless removed from office by impeachment and conviction.
Life tenure for federal judges has been part of our constitutional system since the framing of our Constitution. Alexander Hamilton was the leading proponent of this provision in the Constitution. He argued that life tenure was essential to assuring the absolute independence of the judiciary from the influence of the political branches. Of course, Hamilton also described the judiciary as "the least dangerous branch" since it exercised no force or will but only judgment. But today, many are concerned that the federal judiciary has become the most powerful branch, acting as an unaccountable, quasi-legislative body.
Recently, Hamilton's assertions that lifetime tenure is necessary to securing judicial impartiality and independence have been challenged. Certainly, the judiciary is no longer considered the least dangerous branch.
The role of the modern Supreme Court is much different than originally intended by those who drafted the Constitution. The Court today routinely decides cases of great magnitude. These include school desegregation, state electoral districting schemes and even the outcome of a presidential election. And the Court enters the "political thicket" with increasing frequency. Problematic consequences have arisen as Justices have grown in power, become more invested in their decisions and inserted themselves in the "culture wars."
Major political leaders from many eras and persuasions have proffered arguments against lifetime tenure for federal judges. These include such diverse figures as Thomas Jefferson, Andrew Johnson, John F. Kennedy, George H. W. Bush and Senators Orrin Hatch and Dan Quayle. Jefferson advocated four- or six-year terms for federal judges. Andrew Johnson urged twelve-year terms. And Dan Quayle proposed fifteen-year terms.
There are some persuasive arguments against life tenure for judges. Lifetime tenure, for instance, vastly increases the stakes in filling each Supreme Court (and lower federal court) vacancy. Senate battles over judicial nominations would not be so bitter if the consequences of losing were not likely to persist for decades. Supreme Court justices are also tempted by the current arrangement to time their resignations for political reasons--often holding onto their position through bad health until a like-minded president is in office. Life tenure as well encourages presidents to nominate younger candidates with minimal paper trails and maximal potential to shape the future, thereby passing over more experienced individuals whose resumes might trigger an ideological assault. Moreover, life tenure deprives the judiciary of regular infusions of "new blood," especially given the fact that judges are living, and thus serving, much longer. The result of this is a decrease in intellectual vigor and awareness of contemporary culture among some judges. What's more, life tenure allows bad judges to remain on the bench indefinitely, and it allows even very good ones to remain on the bench when they are no longer doing their best work.
Life tenure clearly does not insulate federal judges from political pressures. In fact, it encourages Supreme Court Justices to be overly mindful of politics, particularly the partisan political landscape of the White House and the Senate, in deciding when to retire. The average age at departure for Supreme Court Justices from 1789 to 1970 was 68.5 years. From 1971 to 2000, it was 78.8 years. And during those same periods, the average time served by a Justice rose from 15 years to 25.5 years. Thus, mental incompetence has become a more pressing issue within the last 100 years.
The most obvious method of implementing term limits for Supreme Court Justices is by amending the Constitution. Another would have the Senate insist that all future Court nominees publicly agree to term limits or risk nonconfirmation. While legally unenforceable, such commitments by justices would likely be honored.
Along this line, several proposals have been offered. Possibly the most appealing is one that would amend the Constitution to limit Supreme Court Justices to 18-year, non-renewable terms, with one expiring every two years. If a Justice left the Court prior to the expiration of his/her term, the President would nominate (and Senate confirm) a "replacement" Justice who would only serve for the remainder of the retiring Justice's term. Under no circumstances could a Justice--even a "replacement" Justice who only served for a short period of time--be reappointed to the Court. Once the Justices' term expired, each former Justice would be permitted to serve for life on the lower federal court of his choice. Arguably, this system will remove the problems of strategic retirements, incentives for young nominees and unfairly distributed appointments.
Regardless of the details of the solution, there are a growing number of scholars who believe that the dire predictions of "Brutus," one of the leading anti-federalists of the Founding period, have come true: life tenure has placed judges "in a situation altogether unprecedented in a free country," rendering them "independent, in the fullest sense of the word. There can be no power above them to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and every power under heaven.... Men placed in this situation will generally soon feel themselves independent of heaven itself."
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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