Knowing When to Take off the Robe: Who Should Decide?

July the 4th weekend is always a good time to think about political power wielded arbitrarily by unelected, berobed rulers who may serve until their death.

In that light,this Reuters interview with Supreme Court Justice Ruth Bader Ginsburg in which the octogenarian vows to stay on the high court “several more years” raises the issue of whether the U.S. is best served by retaining the system of life tenure for Supreme Court Justices.

In fairness, unlike George III, Justice Ginsburg is of humble origins,earned her credentials and was appointed and confirmed in her post by elected officials, albeit twenty years ago. So far there is no sign that she is losing her faculties the way he eventually did. Her robes are also significantly less flashy than the monarch’s or even Justice Rehnquist’s. Still, she, like all of her colleagues, exercises a great deal of arbitrary, unaccountable power and may do so for life. It’s much more in keeping with monarchical tradition than the Spirit of ‘76.

There was already discussion by liberal legal scholars about the desirability of Ginsburg retiring before the 2012 election and her recent comments are likely to spark further discussion and perhaps some agita on the part of liberal court-watchers.

We don’t know how seriously to take Justice Ginsburg’s claim that Justice John Paul Stevens, who served until he was 90, is her “new model.” No one wants to be a lame duck and Ginsburg also might not want to admit that political considerations would guide her retirement decision, although she has hinted as much before and legal journalist Jeffrey Toobin, who also recently interviewed the Justice, said that “she would like to retire while a Democrat is in the White House.”

Right now this is a concern for liberals (as should be the continued tenure of 75 year-old Justice Breyer, given the shorter lifespan of men compared to women), but the shoe has been on the other foot often enough. By refusing to step down before the very close 2004 election despite his own advanced age and, eventually, terminal illness, Chief Justice Rehnquist, who died at 80 in 2005 without retiring,despite missing many oral arguments, ran the risk of having his successor be named by the President Kerry who nearly was.

The broader point is that the whims of one unaccountable person, whatever their age, abilities or ideology should NOT matter so much in a democracy. Term limits for the Supreme Court would address the much discussed possibility of strategic retirement, in which a Justice chooses to leave the bench at a time when there is a President likely to appoint a replacement with similar views, reduce the variation in the number of appointments each President gets, reduce the likelihood of Justices serving into their dotage and keep the Court from becoming too out of touch with society. This is an issue that Monkey Cagers have addressed in the past, without reaching consensus, but it is again timely.

Such a reform could be structured in various ways, but if, for example, Justices knew that if they retired during the term of a President with similar views he or she would only be able to appoint someone to serve out the remainder of their term, their incentive to retire strategically would disappear. At the same time the term limit would keep Justices from staying on the Court beyond the time when they could serve effectively, as Justice Thurgood Marshall and others did, in hopes of waiting out a Chief Executive they disliked.

Life tenure for a Supreme Court is an anomaly among democratic political systems at home and abroad. Other democratic countries with judiciaries ranked as equally independent as the American courts and 49 out of the 50 American states do not use life tenure. (Rhode Island is the exception.) Some nations and states have mandatory retirement, others have fixed terms. Some have both. (In some states a judge can serve for an indefinite period at any age, but is subject to periodic reappointment or re-election.) When this system was instituted in the late 18th century Alexander Hamilton argued that there were very few men qualified to serve and that they would be unwilling to give up their lucrative law practices without the prospect of life tenure. Does anyone believe that is still true?

A mandatory retirement age would be an improvement on the status quo, but would still encourage Presidents to nominate young Justices, to maximize their long-term impact ,e.g. Clarence Thomas. An 18 year term would greatly reduce that incentive. Our system is backward. We limit the terms of the elected President, but not those of the unelected Judges.

There was a flurry of interest in this idea circa 2005 among law professors before Justice O’Connor retired because there had been so little turnover on the Court for so long. I wrote an essay in this 2013 volume aimed at undergrads edited by Richard Ellis and Michael Nelson.

George III stayed on his throne for life, although he was unable to really rule due his insanity in later years. By contrast, this year we’ve already seen two monarchs who exercise less power than he did choose to abdicate at the ages of 75 and 80, respectively. Some Justices, including Scalia and Ginsburg, have children who are attorneys. Maybe they would retire if they, like Beatrix, Queen of the Netherlands or Albert, King of the Belgians, knew their children would inherit their positions? Or maybe we as a country could revisit an 18th century political arrangement that has outlived whatever usefulness it may have once had.

5 Responses to Knowing When to Take off the Robe: Who Should Decide?

  1. Michael Bailey July 4, 2013 at 10:04 pm #

    I’m pretty sympathetic to 18 year fixed terms for justices, but I have to say that when Albert Yoon and I really tried to model out the mischief unlimited terms do we found relatively few effects (;

    And, we should remember that justices each have idiosyncratic views toward the law. This means that the 18 year terms would put more justices on the bench and lead the law to bounce around more in response to the increased number of justices

  2. William Blake July 5, 2013 at 4:27 pm #

    David’s characterization of American state supreme courts is slightly inaccurate. There is a difference between life tenure and a mandatory retirement age. Twenty-seven states employ a mandatory retirement age. However, 26 of them require judges to stand for periodic elections or re-confirmations (Rhode Island being the exception). However, New Hampshire and Massachusetts (like Rhode Island) have gubernatorial nominations with legislative confirmations, but then require those judges to retire at 70.

    Overall, I agree with David’s theme – and I think it speaks to a broader issue within the study of American politics. American institutions scholars study an N of 1, which makes (by definition) it very difficult to consider how institutions structure politics because those institutions do not vary. Instead rational choice approaches take institutional structures as a given, which blinds us to the possibility that those incentives, like strategic retirement of judge, might be perverse.

  3. Matthew Shugart July 7, 2013 at 3:08 pm #

    As now employed in some US states as well as several newer constitutions in Latin America and other parts of the world, non-partisan nominations or appointments commissions seem like a good idea.

    Another feature of the USSC that really stands out in cross-national context is how small it is. Nine members for such a large country is actually rather shockingly small. Presumably, the consequences of one justice exiting and needing to be replaced is diminished with a larger court.

    Of course, it would be hard for any politician to sponsor court expansion, which would be sure to be called “court packing”. All the more reason to combine such a reform with a commission formally vetting all appointments (and perhaps long fixed and non-renewable terms as well).

    • Lawrence Zigerell July 8, 2013 at 1:25 am #

      It is possible to expand the Court without packing and with minimal disruption to the status quo:

      1. Give each current justice two votes and each new justice one vote: each vacating current justice is replaced with two new justices, and all other vacancies are filled with one new justice.

      2. Let’s say that we want an eighteen-member Court immediately. Each sitting justice nominates one new justice.

      The potential for a tie vote is greater in these scenarios, but the Court already handles tie votes; plus, requiring a 10-to-8 majority to create precedent would make it slightly more difficult for the Court to overrule a lower court or alter its own precedent.

  4. Skip Schnierow July 10, 2013 at 3:31 pm #

    David, a good article and you make a good point, however, I think that you are approaching it from the wrong angle!

    Eightteen years is the correct length but if each term is staggard by two years, you do not have to call it term limits. Each term of the Presidency would get two picks and if someone left prematurely, the replacement would be for only the balance of their term.

    I believe that this would take a constitutional admenment. Most think that this is a good idea but it really needs some sponsors.

    Keep pushing