Article III of the Constitution of the United States provides that judges of constitutional courts shall serve during "good behavior." The purpose of that provision was to secure the independence of the federal judiciary from any efforts of others with political power to influence judicial decisions improperly. The term has often been assumed to mean that Supreme Court justices may hold office until they resign, die or are removed for serious misfeasance. Our nation has greatly benefitted from the exceptional independence of the federal judiciary, but the independence principle does not require lifetime tenure for justices. The conventional assumption has become unsound because of increases in our longevity and other changes that have increased the tenure of justices.
Since 1971: (1) Average tenure in office, historically about 16 years, has increased to nearly 26 years; (2) the average age upon leaving office has increased from about 70 to 79; and (3) the average number of years between appointments has increased from the historical figure of a vacancy every 2 years to one every 3 years. The lengthening of tenure is illustrated by the fact that, prior to the Rehnquist and O'Connor vacancies in 2005, there was no new appointment on the Court for more than eleven years, the longest period without change since the Court was increased to nine justices nearly 150 years ago.
The Founders, acting at a time when life expectancy at birth was less than 40 years, could not foresee that lifetime tenure would result in persons holding so powerful an office for a generation or more. Today an American at age 40 has a life expectancy of 39 years and at age 53 (the average age of appointees to the Supreme Court) a life expectancy of about 30 years. These changes have at least three unwelcome secondary consequences that need to be addressed:
First, as justices serve ever longer terms, rotation in office occurs infrequently and the higher stakes of appointing a justice for 25-40 years place stress on the confirmation process.
A principal consequence of the lengthening tenure of Supreme Court justices is that the Court has become less accountable to the people. This accountability, under the U.S. Constitution, flows from the appointment process; the remedy of impeachment is only available when a Senate trial has determined that a justice has committed a major crime. And the appointment process only comes into play when a vacancy arises or the Court is expanded in size by legislation. As the Court's accountability has declined, it has exercised increased authority and has seen fit to displace state and federal legislative bodies by its own ideas of social structure or moral conduct. Matters as disparate as abortion, the death penalty and the boundaries of voting districts have become fields in which it purports to exercise ultimate authority.
Lengthened terms diminish the accountability of the Court to the political process. Until recently, virtually all Presidents who served at least four years made at least one appointment to the Supreme Court. But that is no longer the case. Some Presidents are now afforded no appointments during a four-year term. When an opportunity to make an appointment is presented, Presidents have incentives to appoint younger persons likely to serve 35 years or more. A President serving two terms may hope to appoint five justices who could control the Court for a full generation. And Senators voting to confirm a nominee may need to take into account the prospect that the nominee will be exercising political power over his or her constituents on a future that cannot be foreseen.
Moreover, the absence of rotation in membership elevates the Court's role as a political institution. Presidents, heads of departments, senators, and members of Congress come and go, but today justices stay and stay. An important reason justices stay on when they are eligible to retire at full pay, as United States circuit judges generally do, is that justices enjoy the exercise of such great power and the celebrity that flows from it. True, an individual justice is constrained by the differing views of other justices and the necessity of building a coalition. But the institution has come to exercise powers over the lives of citizens that in important respects exceed those of the other branches of the federal government and even more those of the states.
1 This paper draws heavily on a 2005 memorandum and proposed statute that was endorsed in principle by nearly fifty leading constitutional law and federal courts scholars. The proposal itself, somewhat edited from the initial version, may be found on the Internet at the following address: http://www.paulcarrington.com/Supreme Court Renewal Act.htm. For extensive discussion of the lengthening tenure of U.S. Supreme Court justices, its consequences, and proposals for reform, see Paul D. Carrington & Roger C. Cramton (eds.), Reforming the Court: Term Limits for Supreme Court Justices, Carolina Academic Press, 2006.