When Supreme Court justices enter a room, you can feel the air change.
I first noticed this two years ago at the State of the Union address from my perch in the elbow-to-elbow press balcony above the House gallery. Members of Congress below were doing what they do best during this sort of spectacle—glad-handing influential colleagues, breaking off into partisan cliques, nudging one another like mean girls gossiping in the school cafeteria.
But when the justices filed in, they carried with them an unmistakable air of superiority. They seemed above it all. (Some justices skip it altogether because they find it “childish,” as Antonin Scalia put it in a New York magazine interview recently.)
And why shouldn’t they? Once appointed, Supreme Court justices are practically guaranteed to stay on the bench as long as they want.
There’s actually nothing in the Constitution that explicitly promises federal judges “lifetime appointments.” But the language of Article III says justices “shall hold their Offices during good Behaviour,” which can be reasonably interpreted as open-ended on the issue of term length.
Of course, the Constitution was written at a time when merely surviving infancy was a triumph—let alone making it to the Supreme Court with enough time for a 30-plus-year stint on the bench.
“The people who created the Constitution of the United States in the 18th century lived in a very different world than we live in,” said Michael Sappol, a historian and author of A Traffic of Dead Bodies, a book about death and social identity. “The idea that judges would get life appointments had a different kind of meaning then than it does now.”
As more Americans live longer, institutions like the Supreme Court are undergoing profound change. In other words, a lifetime isn’t what it used to be. And plenty of people have argued that the highest court in the land ought to be subject to some of the restrictions that lower-level U.S. courts and top courts in other countries already have in place. “Every place else in the world they have age limits or term limits,” says Paul Carrington, a law professor at Duke University.
The five most recently retired Supreme Court justices averaged more than 25 years apiece on the bench. That’s nearly triple the nine-year average tenure of the court’s first five justices.
Some more perspective to contextualize how times have changed: The average retirement age among the country’s first 10 Supreme Court justices was 60 years old, whereas the average retirement age among the 10 justices who most recently left the bench was 76 years old.
Here’s another way to think about how lifetime Supreme Court appointments have changed over time, based on an analysis of more than two centuries of Supreme Court appointments. Before 1900:
- 26 justices served 10 years or more
- 18 justices served 20 years or more
- 7 justices served 30 years or more
Whereas since 1900:
- 48 justices have served 10 years or more
- 27 justices have served 20 years or more
- 8 justices served 30 years or more
Those who argue in favor of lifetime appointments at the federal level say such a system safeguards judicial independence, and that the high court ought to be protected from the political ebb and flow of regular election cycles.
But lifetime appointments actually enable more politicking on the bench. “Life tenure gives the justice control, to some degree, over his or her successor,” said Carrington, who explains that a justice might wait to retire until a president who shares his or her ideology has been elected. As the New York Times pointed out last year, justices have conflicting priorities—many of them want to serve the nation for as long as they feel up to the job, but they also have “a conflicting desire, which is to perpetuate their view on the court.”
Carrington is one of dozens of lawyers pushing for reforms. An ideal Supreme Court term might be something like 10 years, says Carrington, who cautions that shorter terms could leave the court vulnerable to outside political pressure.
“We don’t want to change our justices every time somebody gets angry,” Carrington told me. “But we’re living in a world where you’re appointing a justice at the age of 50, so you’re going to have a lot of them that serve for 40 years.”
A four-decade appointment is indeed possible. William Douglas, the longest-serving justice, was on the Supreme Court for 36 years between 1939 and 1975. The court’s youngest justice, Elena Kagan, is 53.
Kagan is also just the fourth woman ever to serve on the Supreme Court, a compelling reminder that higher turnover rates might benefit the court by creating more opportunities for gender and racial diversity. (It’s also worth noting that a more gender-balanced court could intensify some of the questions about term length, given that women tend to outlive men.)
The benefits of fostering a more representative bench aside, what does it mean to have the same justices on the Supreme Court for nearly half a century? Lengthy terms raise a litany of concerns ranging from waning accountability to shrinking productivity and intellectual dullness. Plus, one of the goals of the law is to limit the influence of any individual. That’s part of why judges follow precedent.
Much of the resistance to scrapping lifetime appointments has to do with what advocates perceive to be the obstacles—the biggest of which is the idea that lasting change might require a hard-to-get constitutional amendment to Article III. “You don’t want to spend your time or political influence advocating something that isn’t going to happen,” Carrington said. “That’s a factor that’s most formidable.”
But he and others have considered roundabout ways to limit Supreme Court tenure without amending the Constitution, including offering large bonuses to justices who retire after shorter periods of time or creating a new requirement for Supreme Court justices to sit on lower court benches a few times a year to keep justices “in closer contact with the citizens they govern and the realities that citizens perceive,” according to a 2009 proposal by Carrington and several other lawyers.
Writing for the Washington Post in 2005, lawyer Robert Bauer suggested Congress and the president simply ask Supreme Court nominees for an informal commitment to leave the bench after a sensible period of time. “Any justice who hopes that with the passage of time such an exchange would be forgotten would likely be disappointed,” Bauer wrote. “Over time, a custom or expectation would develop.”
Put more simply in a U.S. News & World Report column by John Farrell (emphasis mine): “After all, the Constitution says you can stay for life. It doesn’t say you have to.”
Many who are in favor of shorter Supreme Court terms point out that justices could still work after leaving the Supreme Court, and some have. Sandra Day O’Connor, who retired in 2006, has written several decisions since her retirement and sometimes fills in as a substitute judge on federal appellate courts.
It’s not just the law community that sees term limits as reasonable. About 60 percent of people oppose lifetime Supreme Court appointments, according to a CBS News poll of about 1,000 people last year.
Term limits also make more sense than arbitrarily picking a mandated retirement age, a notoriously slippery measure.
One person’s cognitive skills at 90 might exceed another’s at 60. States with judiciary age limits are increasingly rethinking such laws as people live longer and retire later. In a decision that underscores the political nature of judicial appointments, New York voters this month rejected a proposal to extend judicial age limits from 76 to 80. The New York Times points out that governors seeking to appoint like-minded judges—and not the judges themselves—had “the most at stake.”
And although age limits are common in lower courts across the United States, they are often blunt instruments that unfairly force retirement on some, while failing to hold accountable those who should step down even sooner. (In the 1950s, the Senate advanced a proposed constitutional amendment that would have required all federal judges to retire at age 75. The measure eventually failed.)
Recently, Scalia told New York’s Jennifer Senior that you “always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.” Though he’s revealed no plans to step down, he says he’s confident that he’ll know when it’s time—once he stops enjoying the job.
In 1983, before he joined the Supreme Court, Chief Justice John Roberts suggested 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,” according to a New York Times story published in 2005, the year he was appointed.
Of course there are plenty more reasons for giving up a lifetime appointment.
A favorite of mine comes from Thurman Arnold, a federal judge for the U.S. Court of Appeals for the District of Columbia Circuit, who walked away from his lifetime appointment in the 1940s. The reason, according to his 1969 New York Times obituary: “I’d rather speak to damn fools than listen to them.”
Correction, Nov. 22, 2013: The caption on this article’s photo originally misidentified Justice Stephen Breyer as Justice John Paul Stevens.