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The absurdity of life tenure for SCOTUS justices


Sandy Levinson points out that basically nobody else in the world — or even for that matter at the state jurisdictional level in the USA — grants life tenure to apex court judges:

First, I think it is telling that all of us [at this symposium] seem to be fully comfortable with the idea of term limits. It is getting harder and harder to find anyone who genuinely defends either as “necessary” or even “proper” the truly exceptional national American practice of “full-life” tenure that allowed John Paul Stevens to serve for 34 years until he turned 90. I highlight “national” because only one of the fifty American states allows similar full-life tenure. As is often the case, even a brief look at American state constitutions will reveal how “exceptional” the national Constitution is even within our own borders, let alone internationally. There is nothing “unAmerican” in placing judges under the discipline of term limits or, indeed, even electing them rather than relying on an increasingly grotesque full-bore political process to stock the federal judiciary.

All of us are more than aware—and some of us remain truly angry—that Ruth Bader Ginsburg, even years after she was diagnosed with what are typically quite virulent forms of cancer, chose to roll the dice with the country’s future for no good reason other than her own vanity. Not only did she lose her bet; she also inflicted enormous damage on the country (with the help, of course, of Donald J. Trump and Mitch McConnell). Even the term that most of us support—eighteen years, which would allow each president to appoint two justices per term, with no single president being able to “pack the Court” with a majority—is significantly longer than is typical around the world with regard to apex courts that, inevitably, do far more than simply offer formal readings of what “the law” is said to require. The eighteen-year term idea is almost completely a function of the fact that we have a nine-person apex court. Were it smaller or larger, then other terms (or perhaps simply age limits) might be far more appealing.

One of life’s little ironies is that the American political system overcame the enormous inertia involved to pass the 22nd amendment, limiting presidents to two terms, in the wake of FDR’s 12 years in office, yet the idea that Supreme Court justices are now routinely on the way to staying on the Court for three times longer than that is treated as just one of those things you can’t do anything about, because among other things the justices get to rule on whether a statute that term-limits them is constitutional (I mean it obviously is constitutional, since they hold office subject to good behavior, and staying on the SCOTUS. forever in a day is very bad behavior indeed).

As SCOTUS adjudication inevitably becomes more overly political in an increasingly partisan presidential system, the spectacle of the party that has lost all but one presidential popular vote since the 1980s controlling two thirds of what — again inevitably! — is morphing into a practically overt super-legislature becomes one of those contradictions that have gotten heightened just a little too much to bear.

*A side note: You can tell from the draft Dobbs opinion that it started to get circulated to the various chambers for comment on January 23rd, because there’s a footnote that reveals a website citation was last checked the day before, and that’s the kind of thing that a SCOTUS clerk would be certain to do at that point. What’s interesting about this is that Breyer announced his retirement three days later, which I doubt is a coincidence.

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