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.


Anonymous said...

The underlying problem with having judges serve for less than life is not what it would do to legal culture but what it would do to political culture. For the most part, Congress doesn't want to act substantially and SCOTUS serves as a convenient excuse, whipping boy, etc. When in doubt, write something vague and let the courts sort it out. But if judges were to be appointed every 18 years then people might actually expect their Congress critters to do something meaningful.

FWIW my view is that the better solution is just to recognize that the ability to hold laws unconstitutional is fundamentally antidemocratic. Get the judges out of that business and then no one will really care if they serve for life.

Howard Wasserman said...

Do you disagree with Carrington, et al., that the 18-year-term can be established by statute, without the need for constitutional amendment?

Could Congress impose the 2/3 requirement by statute?

Joe said...

The issue of health isn't just a life tenure thing and the examples underline the point: Douglas had his stroke in his mid-70s. People have disabling strokes and other medical conditions at even younger ages.

"Good behavior" to me also can be interpreted to have some minimal ability to do one's job anyway. The question there is the will to remove the person from the bench -- lower court judges can be removed from active service, for instance, from my understanding already by the judicial oversight process already in place.

I do think, especially with expanding life spans and reduced workloads that allow justices to stay on, that fixed 18 year terms make sense. The "returning governmental power to elected and more accountable governmental officials" raises the whole judicial review issue & just how "accountable" some agency official or local police officer or whatnot really is at the end of the day especially with current immunity rules & majority acceptance for violations of civil rights.

Joe said...

"the ability to hold laws unconstitutional is fundamentally antidemocratic"

I pledge allegiance ... to the republic for which it stands.

The people are the ones who keep in place the current system where judges chosen by Presidents (elected more or less by the the people) and confirmed by senators (ditto) have the power to hold laws unconstitutional based on a document ratified by the people's representatives. The people want some basic rules that a majority cannot override. This also is -- if somewhat more limited in certain ways -- a growing reality internationally.

Plus, even w/o full judicial review, judges will have a lot of power. They will have broad discretion particularly over those in the criminal justice system as well as applying open-ended laws with rulings Congress might eventually overturn ... if you know, Congress had the wherewithal to do that sort of thing. This is already the case with statutes -- Congress could overturn statutory interpretations and now and then do but generally leave it be.

Anyway, few care now -- we can have these debates but the people overall don't really think much about the issue. How much it even matters beyond the Supreme Court is really unclear anyhow. Even there, the fact Douglas lingered on for a fraction of a year after his stroke or Marshall was feeble late (note: he nearly always voted with Brennan even when healthy) had limited effects really.

Unknown said...

In re term limits: I disagree greatly. Term limiting Justices would actually politicize the nomination process and cause all the problems of needing a recess appointment on a more frequent basis. The simple solution for cognitively impaired Justices is for the congress to determine refusal to resign in the event of such impairment constitutes "bad behavior", making Them removable from office. Plus, nothing prevents the congress from expanding the court in order to "thin out" the influence of such Individuals. Term limits are the political equivalent of using a hatchet to remove a Fly from Your forehead.

qwoijzacxoi said...

I don't understand how the 2/3 rule can function. For example, in a landmark 1st Amendment case, 5/9 justices decide that obscenity is now protected speech when reviewing an obscenity statute. But despite the new rule the same statute will be upheld because only 5 voted for the new rule? And the next day when another state's exact same sister statute is reviewed, that statute is struck down because now 6/9 or more justices voted following stare decisis.

Shag from Brookline said...

Proposed statutory changes via Congress (along the ones of Carrington et al) may end up being considered by the Court, unless such changes impose limitations on the Court from doing so. How realistic is all this without direct Article V amendments to Article III considering the political dysfunction of the elective branches?

As to James' suggestion that the Court not have the power to hold laws unconstitutional, I think of Brown v. Bd. of Ecuc. (1954). Of course that decision was unanimous.

DHMC said...

Hear, hear! I have long argued for set terms for the Supreme Court Justices, and have toyed with 18, 20, or 25 year terms. The idea of the tenure spanning two eight-year Presidencies is sound policy. My only quibble with what Prof. Segall has proposed is that the idea seems to be fixed terms by position, presumably staggered. I think it would make more sense (and would be an easier sell if it ever came to a vote to amend the Constitution) to simply state that a Justice can serve 18 years from the time of appointment. If a Justice were to step down after 15 years, then so be it. The idea of an interim Justice filling out those last three years would invite a political maelstrom -- plus, I think there is great value to the occasional moderating effect that years of service has on Justices.

Eric Segall said...

Howard, I think it would probably take a constitutional amendment but wouldn't be sad if it didn't.

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