The death of Justice Antonin Scalia in February, and subsequent nomination of Judge Merrick Garland as his replacement, has touched off a pitched struggle between President Obama and the Republican-controlled Senate. Scalia’s replacement is almost certain to shift the ideological balance of the Court, having a massive impact or years to come.
For those justices who retired from the Court since 1970, the average length of service was 26.1 years, with a corresponding retirement age of 80. Many justices outlast three or more presidents, and shape American jurisprudence for a generation or longer. Nominating and voting on Supreme Court justices are amongst the most consequential decisions any president or senator makes during office.
It is time to impose a ceiling on how long a justice may serve on the Court. For each justice who retires from today’s Court, his or her replacement should serve for a single term of no more than 11 years. Over time, the Court will be composed entirely of tenure-limited justices.
Imposing such limits will stem the concentration of power into the hands of a single justice, by curbing the chances for any individual jurist to disproportionately shape the Court’s decisions over an extended period of time. These restrictions will also help ensure that each justice is contemporary with legal and societal realities, which will make for more thoughtful, informed judicial decisionmaking. Lastly, by placing a cap on how long a justice may serve, we can reduce consideration of age in court appointments, which will open the door to a greater variety and quality of judges.
Lifetime appointments allow a single justice to have a disproportionate say in how the Court rules in vital matters, sometimes for a decade or longer. Let’s consider Justice Anthony Kennedy, who has served on the court since 1988, and often cast the deciding vote in many of the Court’s most noteworthy 5–4 rulings.
In 2015, Kennedy authored the Court’s ruling in favor of a constitutional right to same-sex marriage. Prior to that, he held that application of the death penalty is unconstitutional in non-murder cases, and for defendants who were minors when they committed a crime. Kennedy has also voted to expand the rights of Guantanamo detainees to challenge their imprisonment, and is widely seen as a determinative voice against the most stringent state-level abortion restrictions.
Of course, Justice Kennedy was appointed by President Reagan, and often leans to the right. He has cast the crucial fifth vote to strike down gun control laws and campaign finance restrictions, ruled against the Voting Rights Act of 1965, and the use of race in high school enrollment. Kennedy is also known for his skepticism towards affirmative action programs.
The Court exercises considerable influence over the life of every American, with few practical dampers on it’s power. Justice Kennedy, as the conclusive vote in so many impactful cases, has touched countless corners of American life. However one might view any of his specific findings, does it make sense for one person to offer the ultimate interpretation of our laws, serving as the “go to justice” for a decade and counting? Does this singular approach make for well-reasoned outcomes? Knowing that even the wisest amongst us are not infallible in judgment, how should Americans feel about placing our shared legal fate in the hands of one person, no matter how intelligent or personally palatable his rulings appear?
Tenure restrictions will help alleviate this situation. Over the years, as each lifetime appointee is replaced by someone who sits on the Court for no more than 11 years, we will see the composition of the Court changing more frequently. This will result in varied judicial philosophies, and new, shifting coalitions of judges, coming together to decide cases.
That doesn’t mean there won’t be 5–4 rulings in the future, with one “swing” justice acting as a decider in lots of cases. Yet, it greatly reduces the chances for one person to occupy this role for years or decades, as Justice Kennedy has done.
Capping a justice’s time on the Court, will also help ensure that each justice better grasps the legal and societal pulse of the day. Let’s consider the monumental changes we have witnessed over the past three decades, shortly after Justice Scalia joined the Court. Mobile phone adoption in the United States has become nearly universal, and a solid majority of these devices are smartphones, which receive and transmit an immense amount of personal data, invoking weighty privacy and security implications. Domestic andinternational terrorism is an ever-present threat, while government surveillance continues to expand at home and abroad, aided by increasingly sophisticated technology.
Both marriage and divorce rates have dropped, while births outside of wedlock continue to increase. Support for the rights of LGBT individuals has increased dramatically, while ethnic demographics have perceptibly shifted, in large part thanks to immigration, some of which has occurred under dire circumstances. Religious observance has declined. Bob Dylan was right: “The Times They Are A-changin.”
A justice who enjoys real familiarity with the most pressing legal matters of his or her time, may well offer more insightful rulings on the most pressing topics before the Court. Prior to his or her ascension to the Court, such a justice might have recently litigated or heard cases involving questions of online security and privacy, or the use of sophisticated new surveillance tools. This justice might have also be familiar with issues of immigration by individuals fleeing persecution, or matters of worker rights in an ever-changing labor and economic landscape.
Such practical working knowledge will prove quite useful in understanding the complex cases before the court, especially those of a more technical nature. This was starkly demonstrated in the 2010 case of City of Ontario v. Quon, when several long-serving justices struggled to understand both technical functions and privacy concerns surrounding mobile devices.
What’s more, a recent appointee has likely witnessed some of the aforementioned social and cultural changes in the nation firsthand. He or she likely goes shopping at the local supermarket, and goes for walks in the neighborhood, and maybe travels elsewhere in the country. This prospective justice might have also been involved with the education of a child, or participated in nonprofit organizations, whether charitable, political, cultural or religious. Each of these experiences allows one to better understand the shifts our society undergoes over the decades, which colors the context of cases before the Court.
Contrast this with a justice who sits on the Court for decades on end, living in the Washington DC area. Such a justice faces a demanding workload, and might be cloistered in the insular legal circles of the nation’s capital. While he or she might develop a secondhand understanding of how Americans actually live, there are few substitutes for, witnessing, grappling with, and really feeling the realities of the era in which one is serving on the Court.
Lastly, allowing justices to serve on the Court for no more than 11 years, could reduce the importance of age in court appointments, which can lead to a more unique, experienced group of judges. Prior to Justice Scalia’s death, six of the nine justices on the Court were 55 or younger when they assumed their seats, with three being 50 or under.
With the average justice spending well over two decades on the Court, offering a younger nominee, is a powerful method for a president to cement a legacy. The nomination of Judge Garland, who at 63 is the oldest nominee since Lewis Powell in 1971, is a notable exception to this trend, and is driven by unique political circumstances.
If each justice could serve for only 11 years, considerations of longevity would be of lesser importance, and a president could focus on appointing someone with a range of relevant professional and personal experience, but is over 55. Respected former politicians, powerhouse scholars, luminary lawyers, influential state and federal judges, and perhaps even a few highly capable non-attorneys, may be considered for the Court, bringing a wealth of unique knowledge, perspective and wisdom to their work.
We still haven’t answered one question: Why 11 years? First, by structuring tenure on the Court with odd numbers, we symbolically decouple Court nominations from elected terms of office, which are multiples of 2 (members of the House serve for 2 years, the president for 4 years). While the Court often considers politically charged matters, justices are not politicians. An 11 year term might offer little practical difference from one of 10 or 12 years, but it creates a symbolic measure of distinction from traditional elected offices.
Secondly, why can’t justices serve a shorter term on the Court, maybe 5 years, or a longer one, perhaps 15 years? A justice ought to outlast any individual president, and should thus serve for more than 8 years. While nominating a Supreme Court justice is an inherently political act, a justice must be understood as separate from, rather than a mere appendage of, the president who appointed him or her.
Yet, we must constrain the ability of any individual justice, to shape the law over extended periods of time. 11 years on the Court means that a justice serves for more than 2, but just under 3 presidential terms, which balances both of these concerns.
The Court has played a paramount role in American life for over two centuries, deeply molding how we conduct business, protect individual rights, and administer justice. At times, it has done much good, lighting the way towards a better world; in other instances, the Court has also been a source of regressive, narrow rulings, which impeded our share progress. Ultimately, for the Court to function most effectively in the future, it is time to end lifetime appointments to the Court, and allow each justice to serve for a one term of 11 years.
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