The 2016 Election, the Supreme Court and the Problems of Life Tenure

By Eric Segall

The 2016 Presidential election will almost certainly have a major and dramatic impact on the political direction of the United States Supreme Court. Donald Trump has promised to nominate conservative Justices, and the list of potential nominees he made public is consistent with his pledge. Hillary Clinton, if elected, would of course nominate Justices with more liberal or progressive values. The difference is significant as there are three Justices older than 75 in addition to Justice Scalia's vacancy. Thus, the next President may well appoint two to four Justices. The future of campaign finance reform, voting rights, the scope of freedom of speech and religion, executive power, and the rights of criminal defendants, among many other important issues, are at stake.

Even apart from ideology, however, the 2016 election provides important lessons about the nature of our highest Court and the harmful effects of life tenure. First, let's assume that Trump wins. In light of all we know about Justice Ginsburg (she is 83), she would probably try to stay on the Court until after the next election no matter her physical or mental state. Without suggesting that she is in any way unfit right now, we should not allow nine of our most important public servants to determine unilaterally and without check how long they will serve. There are numerous Justices, such as Douglas and Marshall, who stayed on the bench past the time they were up to the job, and there is absolutely nothing the public can do about that. The Justices do need their independence but as every other democratic country with judicial review in the world has determined, fixed terms, mandatory retirement ages, or both, can provide that independence without the well-documented problems caused by life tenure. Although we would likely have to amend Article III of the Constitution to solve this problem, that is exactly the step this country should take.

Let's assume the next President nominates two or three Justices (and the Senate confirms them which is a big if). Those men and women may well serve for more than a quarter of a century from when they were appointed. Adding two or three liberals or two or three conservatives could determine the course of constitutional law for decades or more.

This problem is serious and has in the past led to Courts that are out of touch with current societal values. For example, the Justices delayed important aspects of the New Deal because they had come of age in the previous century, when those kinds of executive/federal programs were unthinkable. Arguably, the Warren and even Burger Courts issued decisions (Roe was issued by the Burger Court) out-of-step with the changing values of the American people when the sixties came to a close. Justice Black was confirmed in 1937 and served to 1971!

 I suspect, although conservatives will be loathe to admit this, that the perspectives of Justices Alito, Thomas, Roberts (and Scalia before he died) on gay rights, faux religious liberty, and voting rights, among other issues, will fifty years from now be universally deemed absurd and antiquated. These Justices generally came of age during the time when opposition (or support of) Roe, Miranda, and other Warren Court decisions, for better or worse, generated constitutional psyches. But times have changed dramatically since then while the Justices (including Ginsburg and Breyer) often seem rooted in past arguments, values and debates.

A good example is gay rights. A necessary condition for those rights having been protected by the Court is that Justice Kennedy received the seat that Bork failed to secure and that Justice Kennedy has been acutely sensitive to gay rights--possibly because of his close personal relationship with a mentor who happened to be gay-- and Kennedy's likely observation of the indignities that person had suffered. Gay rights issues could easily have gone the other way, which I am completely confident would have astonished later generations.

Justice Stevens served into his 90's and no one is suggesting he was unfit when he retired. But our country is ill-served by an institution staffed by folks who have been doing the same job for 20-30 years or more. My father used to say that CEO's (he was one), after about ten years feel like they have heard it all before, and generally speaking lose the hunger to experiment and accept new ideas. One does not have to be a core legal realist to accept that stale legal doctrine plays less of a role than the Justices' perspectives on the real life consequences of their decisions. Do we really want Justices whose perspectives were often formed 30-40 years before they are called upon to decide hard cases?

There are good reasons we have limits on how long the President can serve, why many states have term limits for governors, and most importantly, why 49 of the 50 states (Rhode Island is the exception) do not have life tenure for their high court judges. Giving government officials who have serious and largely final decision-making power a job for life subject only to their own personal whims and political goals is an exceptionally bad idea, and right now the stakes couldn't be any higher. Conservatives have every reason to fear a Court shaped by Hillary Clinton while the same is true for liberals and Donald Trump. Whoever is elected President will seriously affect the future of this country long after they are out of office, and that reality should trouble everyone.