The Complete Irrationality and Disastrous Effects of Life Tenure for Supreme Court Justices
The world is on fire, and we have larger issues to be worried about than life tenure for Supreme Court justices. On the other hand, the world is on fire at least partly because of the 6-3 GOP super-majority that has enabled Trump in a myriad of terrible ways. So, behold the effects of life tenure.
We are approaching the tenth anniversary of Justice Scalia’s death on February 13, 2016. Despite there being almost a year left in President Obama’s term, Senator Mitch McConnell infamously refused to give Obama’s nominee a hearing. But, had Justice Scalia, who was in poor health at the time of his death, died just one year earlier, it is extremely unlikely that McConnell could have delayed the nomination for a full two years, and President Obama would have named Scalia’s successor.
Justice Ruth Bader Ginsburg died on September 18, 2020. Had she passed away just four months later, President Biden would have been able to name her successor. Change the dates of the deaths of these two legal giants by just a little bit, and we would most likely have a 5-4 liberal Court today and almost everything we know about constitutional law (and maybe our country) would change. And those are very high stakes.
Abortion would still be a constitutional right and probably protected more than ever before with a 5-4 liberal court starting in 2020. Affirmative action would be still legal and probably less subject to strict judicial review than prior to 2020. Partisan redistricting would be judicially reviewable and subject to the whims of a liberal, pro-Democratic Party Court. Although there would likely be some form of Presidential immunity, it would look vastly different than the all-encompassing golden shield the Court handed to President Trump. And, with five possible votes to disqualify Trump because of the insurrection, my guess is the three liberal justices would have joined with the other two liberals to disqualify him or at least allow states to disqualify him.
Voting rights would be much more protected, while legislatures would have much more discretion to limit the corrosive effects of money on political campaigns.
Administrative law would be completely different. The major question doctrine fantasy invented by the Roberts Court would have been given a quiet death, and the Chevron doctrine would still be good law. Congress would be able to insulate the heads of independent agencies from unilateral Presidential termination.
The Roberts Court’s weaponization of the free exercise clause--by requiring states to fund religious private education if they fund secular private education--would have been reversed, and parents would not have the right to disrupt public schools with religious exemptions for LGBTQ discussions. And, of course, state anti-discrimination laws protecting the LGBTQ community would not be limited by exemptions for folks who think required participation in same-sex weddings by commercial vendors violates their constitutional rights.
The Court’s enabling of Trump through numerous shadow docket cases would never have happened. These immigration, executive branch personnel, and executive branch reorganization cases in the lower courts would not have been stayed by a 5-4 liberal Court, and Trump’s policies would have been severely impeded (if Trump even was president in this alternative universe).
Counterfactuals are hard but a 5-4 liberal court caused by just slight changes in the passing away of Justices Scalia and Ginsburg would have had dramatic and country-changing effects. We need to join the rest of the world and have fixed terms for our highest court justices instead of living through random politicization based on death (and politically timed retirements). In four years, Jimmy Carter appointed no justices, while in four years Trump appointed three. Of course, death can always happen unexpectedly but there are ways of dealing with that (ask almost every other free country).
What makes life tenure in America so pernicious is that our Constitution is among the hardest to amend in the entire world. Thus, the Court’s constitutional decisions are effectively unreviewable except in the very, very long run, and even then, only if the political cards and random events play out the right way.
And finally, as I've written many times on this blog, and borrowing from retired judge Dick Posner, if changing judges changes law, do we even know what law is? That question has the most relevance for the strongest and most powerful judicial tribunal in the history of the world--a tribunal whose members get to decide unilaterally for how long they will serve and which Presidents get to appoint their successors, unless they happen to tragically pass away in office.
We need a sane system of judicial rotation, and life tenure simply has to go.
Eric Segall