Monday, December 28, 2015

Life Tenure, The Balance of Power, and Supreme Court Vacancies


By Eric Segall

The Supreme Court will resume hearing oral arguments on January 11. During this pause in the Term's business, we Court-watchers (and criticizers) can usefully turn our attention to structural issues, like the fact that our Supreme Court Justices are the only judges in the entire world who sit on a nation’s highest court for life. Consider the longest-serving member of the current Court, Justice Scalia. He ascended to the bench before we were all using cell phones, satellite television, or the internet; and he could serve for many years to come. If Justice Scalia serves until the age at which Justice Stevens retired, he would still be hearing oral arguments and deciding cases in 2025.

There are many well-documented problems with life tenure. Over the years, we have had numerous Justices, like Marshall and Douglas, who, though once heroes, quite obviously stayed on the bench after they no longer could competently perform their responsibilities. After Douglas’ stroke, and his refusal to retire even though he could barely function, the Court, over Justice White’s vehement dissent, decided not to resolve any case where Douglas’ vote might matter. At the end of Marshall's service, he was openly confused on the bench and allegedly instructed his law clerks to vote the same way that Justice Brennan voted.

Another problem with life tenure, which has been rarely discussed, is that, unlike for Presidents, Senators, and Governors, there is no plan for replacing Justices who leave office unexpectedly other than the normal procedures of Presidential nomination and Senate confirmation. If that were to happen to any of the current Justices, especially one of the conservatives, the result might well be chaos. In this new world of increased partisan politics and rancor, and where the President is deep into his second term, it is highly unlikely that the current Republican Senate would allow the President to appoint a Justice who would drastically alter the balance of power on the Court.

The problem is that because Supreme Court appointments are for life, the stakes for every new position are so high. When there is a clear swing vote at stake, the nomination carnival is especially wild--which is how we got Justice Kennedy (the current swing vote) in the first place back before Michael Dukakis climbed into a tank and we elected our first President Bush. The Senate went through an old school originalist (Bork) and a new school pot smoker (a different Ginsburg) before settling on Justice Kennedy. A vacancy today would make that nomination debacle look like a walk in the proverbial park.

If there were a vacancy today that could not be filled because of current politics, the Justices might wait for a successor before carrying on at least some of their business (like they did with Douglas when he could not function). If they decided to take that course, however, they might be forced to wait a long time. A better solution would be an interim appointment to just serve out the now no-longer-on-the-bench Justice’s term, but that solution is blocked by the constitutional requirement of life tenure.

To be sure, the Constitution allows for a very short-term solution. A president can make a recess appointment, good until the end of the congressional term, unless the Senate confirms the recess appointee (as happened most recently with Eisenhower appointees Warren, Brennan, and Stewart). But if the Senate doesn't confirm the recess appointee, we are back to square one and, in any event, since the Supreme Court's validation of pro forma sessions in the Noel Canning case, recess appointments look like a dead letter. A more drastic solution is needed.

No doubt the Justices need their independence, but fixed eighteen year terms could accomplish that goal without judges staying on so long that they span four Presidential Administrations, three of them two-term Presidencies (Scalia and Kennedy have served during Reagan, Bush, Clinton, Bush, and Obama). Were we to abolish life tenure, a Justice who leaves office prematurely could be replaced temporarily by an interim Justice who would just finish the out the term.

If we were to amend the Constitution to join the rest of the free world and provide fixed terms or retirement ages or both for our Justices, a Supreme Court appointment would need to be the person’s last job (to fight off trying to please future employers) other than serving on the lower courts. I am pretty sure that the line of folks wanting to be a Supreme Court Justice for 18 years, instead of 38, would still be quite long.

There is one other way to mitigate the potential problem of Supreme Court vacancies. We could amend the Constitution to require that at least two-thirds of the Justices have to agree before a law is declared unconstitutional. Such a change would be helpful for many reasons, not the least of which is it would dilute the power of one single Justice or maybe a block of Justices and make the phenomenon of swing vote Justices less frequent and less important. This solution would also go a long way to returning governmental power to elected and more accountable governmental officials whose careers do not routinely span three decades.