Ivory Powers

Let’s stop bashing “out-of-touch” judges.

A commonly cited reason for giving federal judges mandatory term limits is that they become too isolated and too “out of touch” to do their jobs well. It now appears that a young attorney in the Reagan White House by the name of John Roberts subscribed to this view. In a 1983 memo to then-White House counsel Fred Fielding, Roberts got behind a Senate resolution that would have created 10-year term limits for federal judges. “Setting a term of, say, fifteen years,” he wrote, “would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.”

I am not, nor have I ever been, a fan of judicial term limits, despite the fact that some very learned and thoughtful scholars have suggested that their time has come. Indeed, I see much of this debate—at least in the media—as just another form of cheap judge-bashing; more efforts to strip courts of the power that comes with being unelected and thus, yes, not always accountable to the masses.

But I am most baffled by the “out-of-touch” argument—which seems to suggest that judges must pass some sort of current-events test in order to be effective on the bench. It becomes even more baffling when one considers that so many advocates of an “in-touch” judiciary believe that current morals and mores shouldn’t matter at all when a judge interprets the law. If you’re truly an “Originalist,” for example, the only society you need be intimately in touch with is that of the framers of the Constitution. (To be fair, Roberts’$2 1983 memo points out that there would be no need for term limits if judges simply interpreted, rather than made, law: “It is certainly appropriate to protect judges from popular pressure if their task is limited to discerning and applying the intent of the Framers or legislators.”)

Proponents of term limits nevertheless beat that old “out-of-touch” drum with alarming regularity: One commentator after another accuses judges who rule in ways they find distasteful of being out of touch with the citizenry. The Boston Globe’s Jeff Jacoby argues that lifetime tenure leads to a “decrease in intellectual vigor and awareness of contemporary culture.” That suggests two separate problems that are worth considering separately.

If “out of touch” is simply code for “too damn old,” well, that may indeed be a problem. Court historian David Garrow’s research suggests that many recent Supreme Court retirees have been functionally too old to do their jobs well. (Although Garrow does also acknowledge that the job is “cushy”—perhaps cushy enough that one need not be operating at 100 percent to do it.) At any rate, term limits are hardly the solution to the senility problem—although impeachment may be. Instituting term limits to get rid of faltering judges is the worst form of overkill: Too many superb older jurists would be swept out of service just when their intellectual powers are peaking.

If “out of touch” means that some justices are too old to understand new-fangled medical or technological advancements, I’d suggest that most of the judges and justices on the federal bench can and do read. Even the great Luddites among them have performed very well in technological and medical cases. And unless you’re talking about television’s Judge Joe Brown, an intimate “awareness of contemporary culture” seems altogether unnecessary for getting the judicial job done.

My suspicion is that the words “out of touch” merely represent the kind of anti-elite, anti-intellectual demagoguery that poses the greatest danger to the judicial branch. “Out-of-touch” judges are really no different than out-of-touch politicians, intellectuals, or academics who simply spend a lot of time reading and thinking. And while we may or may not benefit from elected officials who spend lots of time at rodeos and fairs, there is nothing to suggest that such extracurriculars would enhance a jurist’s skills. Judges are supposed to be reclusive and bookish. They’re judges!

Ultimately, it’s worth wondering whether “out of touch” really only means “unaccountable” or, more specifically, unpopular. In which case, an out-of-touch judicial branch is still a democratic necessity. Alexander Hamilton wrote in The Federalist Papersthat “nothing will contribute so much as [lifetime tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Judges who don’t check opinion polls before every decision are probably doing their jobs just right.

An effective judiciary must perform certain countermajoritarian functions. That includes protecting minorities, standing behind unpopular rulings, and creating a legal climate that will survive the rapid shifts and turns of the political tides. If judge bashers want to condemn those who are too “activist” (if they can someday define that term with precision), too old, or too overreaching, then I will stand aside. But let’s put this out-of-touch criticism on the junk heap of rhetorical history, where it properly belongs.