Constitution Check: Should Supreme Court justices have limits on their time in office?

Lyle Denniston looks at the question of term limits for Supreme Court justices, and why it is an issue with many implications.

350px-Supreme_Court_US_2010THE STATEMENT AT ISSUE:

“In light of the crucial role the [Supreme] Court plays across the spectrum of social, legal and political issues, the question of how long our justices serve should be reexamined….Other countries use fixed terms, retirement ages or a combination of the two to achieve the necessary independence. There simply is no persuasive reason to allow government officials who have virtually unreviewable power to hold offices for life.”

 – Eric Segall, a law professor at Georgia State University College of Law in Atlanta, in a column September 20 on CNN Opinion online page, discussing “ways to fix the Supreme Court.”

WE CHECKED THE CONSTITUTION, AND…

Since the Constitution was written in 1787, Article III has declared that “the judges, both of the supreme and inferior courts, shall hold their offices during good behavior…” A legal scholar, Martin H. Redish, once suggested that the phrase “during good behavior” could be the Constitution’s “most mysterious provision.”

The document does not define the concept, but other scholars have said that it is derived from the English common law tradition that the king could not remove a judge simply out of disapproval of one of the judge’s rulings, and could do so only if the judge had committed some crime.  From that origin, the provision has generally come to mean that judges must be guaranteed independence, in some dependable form, in order to be able to make decisions uninfluenced by changing (and perhaps fickle) public tastes or opinion.

In promoting ratification of the Constitution in The Federalist No. 78, Alexander Hamilton equated the “good behavior” idea with life tenure for judges and strongly supported it, writing: “The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”

Professor Segall, among others in the legal academy, has questioned whether life tenure remains “the best expedient” for defining the terms of Supreme Court service. Of course, reexamination of constitutional text and doctrine is an ongoing and healthy enterprise, and it can lead to improvements in interpretation that better suit modern times, even if a restudy does not lead to actual changes in the text of the document.

But the question that challengers to existing text in the Constitution must always confront is: What would be a proper substitute, and what are the chances that a proposed change could be brought about by constitutional amendment? As to life tenure for judges, there is no way that this guarantee can be reinterpreted to diminish the terms of service of members of the Supreme Court, so it would take a constitutional amendment to do that.

Before one begins to craft substitute language, it is first necessary to examine why change is thought to be necessary—in other words, what is the defect that needs fixing? From Professor Segall’s perspective, it appears that his main concern is the “unreviewable power” the Supreme Court exerts over many very sensitive issues in the nation’s public life. But that is hardly a new phenomenon: Ever since 1803, when Chief Justice John Marshall claimed the authority of the courts to “say what the law is” constitutionally, the power of the highest court has been largely unreviewable, except through the difficult and seldom-used process of formal amendment.

Even if Article III were to be amended to impose years or age limits on service of Supreme Court justices, that would not provide a formal new mechanism of review of the justices’ decisions. So Professor Segall probably does not have that in mind.

What he seems to be suggesting, although he does not say so explicitly, is that a rotation in the membership of the highest court would bring in new ideas with generational shifts, and selecting those replacement justices would amount to a kind of referendum on how their predecessors had used their judicial authority. Perhaps that would occur. But what is the goal that the professor really seeks to achieve?

It would appear that, given the insulation of a Supreme Court justice from a political check during a lifetime tenure, Segall has found insulation to be the actual problem that he would like to solve, and that means he would prefer a new form of accountability. And, if it is fair to interpret his views that way, it simply brings the discussion back to the question: accountable to whom, and by what mode?

Other questions then arise: Should the people, the ultimate sovereign, be given a formal way to render their verdict on how justices have used their awesome power? Should the president have some additional check upon the judiciary beyond the appointment process? Should the court be more accountable to Congress?

One can only imagine the difficulty of getting a consensus on a new mode of making the justices accountable. And, without a consensus, what are the prospects that the House and the Senate could agree on the actual language of an amendment? Further, what are the chances that, even if a version of an amendment would emerge successfully from Congress, three-fourths of the state legislatures would approve it for inclusion in the Constitution?

Perhaps devising an alternative to life tenure is within reach of the American legal and political imagination, but no one should be deluded into thinking that it would be easy to find one. Nevertheless, there is always civic value in continuing the constitutional conversation, and Professor Segall’s topic is worth a continuing debate. Such a conversation, though, needs to have all of the implications on the table.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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