Wednesday, January 16, 2019

Why Professor Hemel is Wrong About Life Tenure for SCOTUS

By Eric Segall

Professor Daniel Hemel of the University of Chicago has written a thoughtful essay in Politico on why allowing Supreme Court Justices to serve for life, while raising some problems, is not as bad as the two potential cures that I and many other scholars have advocated (term limits or a mandatory retirement age). Although Hemel raises some strong arguments, they are not ultimately persuasive.

Hemel does a good job summarizing the problems with life tenure though he leaves out two major ones. The first issue is that, in Hemel's words, "some justices really have clung to their positions long after their mental faculties have left them." He gives many examples: "Justice Henry Baldwin remained on the court for nearly a dozen years after his 1832 hospitalization for “incurable lunacy.” One of Justice Nathan Clifford’s colleagues described him as a “babbling idiot” in the final years before his death in 1881. Justice Stephen Field in the mid-1890s and Justice Joseph McKenna in the early to mid-1920s each reportedly spent the end of their tenures in a haze." In modern times, Justices Douglas, Rehnquist, and Marshall were all much less than their best at the end of their careers. The problem of aged and infirm Justices is a serious one.

Hemel responds that the problem of mental illness poses a risk that can be contained, and neither fixed terms (say 18 years) nor a mandatory retirement age solves this problem. The risk is containable because "no justice—no matter how deranged—can do serious doctrinal damage without the acquiescence of at least half his colleagues." While this may be true, it substantially understates the harm caused by one person on a nine-member Court being unable to perform his or her job. Moreover, should that person happen to be a swing or moderate vote, the Court could be paralyzed until the Justice decides to retire (which often doesn't happen) or dies. 

Hemel also argues that if one of the Justices is mentally infirm, the other Justices can do what they did when Justice Douglas lost his capacity--they can perform as an eight-member court, which has many advantages. Obviously, I am the very last person on the planet to argue against an eight-member court, but we should get there through planned structural reform, not judicial incompetence. Moreover, as Justice White said when the Justices decided to go eight months without deciding any case where Douglas' vote might count, it is far from clear what authority the Justices have to just ignore one of their own for that length of time, especially against that Justice's wishes.

While recognizing the problems with aged and infirm Justices, Hemel argues the solution of fixed terms (I don't support mandatory retirement ages so won't address that solution here) raises bigger issues because: 1) even with fixed terms, the Justices might still become mentally ill; 2) fixed terms would lead to more partisan confirmation battles because the Justices would turn over more frequently; 3) staggered fixed terms would give Presidents more picks, which would aggravate the so-called "loyalty effect" whereby Justices are more likely to vote in favor of the interests of the President who appointed them when the President is still in office; and 4) fixed terms might mean the Justices would be even more political, knowing they have a limited time to impose their will on the country and might entice the Justices to decide cases in ways that will increase their odds of better and more lucrative private employment after they leave office.

These are all substantial points, but they do not suggest life tenure is preferable to fixed terms. Yes, a Justice appointed at an older age with an 18-year term might also become mentally ill, but it is unarguable that fixed terms lower that risk significantly. Moreover, one of the major problems with life tenure that Hemel does not discuss is that Justices who serve 25-35 years or more often fall out of touch with the country, given how far in the past they were appointed. This was a major issue in the 1930's when "aged and infirm" Justices, in FDR's words, were overturning his New Deal Programs. Those Justices, infirm or not, came of age in a substantially different world than the one they were presiding over. This issue of the Justices falling out of touch with their own country is not mentioned by Hemel but is serious and likely to get much worse as life spans get longer and younger Justices are appointed by Presidents who want their legacies to last long after the President leaves office.

There would be more confirmation battles with fixed terms, but they would be much less important. The stakes for the country of a Justice serving 18 years are much different than when that Justice might serve for 35. Also, both the media and the American people have limited attention spans, and it is unlikely that frequent confirmation hearings would become more ridiculous then they are now.

The "loyalty effect" is a valid concern but is far outweighed by the damage done by aged, infirm, and out-of-touch judges. Moreover, the Court is a political institution, and the Justices will usually side with the President and the party who appointed them, whether they serve for 18 years or for life. If a Justice is going to be partisan, as many are, better they are partisan for 18 years than 35.

A Justice who knows she must retire in 18 years might towards the end of that term be more inclined to "adjust her decisions with a view toward pleasing potential employers or future voters." As far as future employers go, I have always argued that fixed terms should come with a condition that a Supreme Court Justice appointment is the last paying job the person may have, except for sitting on a lower court. Even with that condition, the line of applicants for positions on the Court would be quite long.

That condition would also prevent a Justice from seeking another political office. Of course a Justice so inclined can do that now. But even without such a condition combined with a fixed term, 49 of the 50 states require their justices to either run for re-election or retire at a certain age and there is no epidemic of judges making political decisions in advance of running for office. Nor, as far as I'm aware, is this a problem for any other free country on the planet, none of which allows its highest court judges to serve for life.

That last point is perhaps the most important one. Many democracies in the mid-to-late 20th century studied our system of judicial review and copied some elements, but not a single one adopted life tenure. The basic idea is this: never, ever give a governmental official who wields enormous power a job for life. That job description more often than not results in justices who equate their personal views with what they perceive the laws to require. Hemel does not address these grave human/ego/psychological problems with life tenure. Being a Supreme Court Justice simply carries too many rewards and too few limits when the holder of the office knows he or she can remain a judge forever.

There is no perfect system or model for a judicial institution that has the authority to veto laws and decisions made by voters, governors, congresses and presidents. But the reality is that our Supreme Court is often composed of men and women who came of age decades before modern times bring modern problems. These Justices, too often, become disabled but remain on the job. Term limits (and retirement ages) aren't perfect, and bring some new issues to the fore, but they are better than giving someone an important government job for life, as every other democracy in the world has decided.


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  2. The rules in place are not there because they are perfect solutions and attempts to show how nifty they are repeatedly are too cute by half (the partisan newspaper op-eds known as the Federalist Papers had some of this). Solutions also won't be perfect. It is a balance of cost/benefit. The case for/against here I assume realizes this.

    A major concern cited, e.g., is to have justices at least somewhat abreast of the times. Some might argue that it is helpful to have at least a few justices that provide a check from another era. And, there are means judges to some degree stay abreast. But, if this is a major concern, it will factor into your analysis.

    Changes in medical science very well might also factor in -- a justice possibly can be on life support for years, to take a for instance. An early judge, John Pickering, was removed in part for concerns of his mental instability (though other issues and intoxication was cited in the formal impeachment charges). Federalist 79 argued removal for inability would be open to abuse and liable to be applied in an arbitrary fashion. OTOH, "insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification." What this means is a bit unclear.

    In some cases, a judge might be unable to do their job, but aware enough to arguably be guilty of wrongdoing worthy of impeachment. But, the scenario of a car accident/coma does not provide that out. Short time incapacity might be acceptable if the alternative is problematic. Douglas, e.g., was unfit for less than a year. Years and multiple justices incapacitated at the same time might be a different matter.

    (Frank Murphy is an example here of a relatively young justice with health issues.)