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The 18-Year Bench—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on Slate.com on June 7, 2012.

The 18-Year Bench
By Linda Greenhouse ’78 MSL

This month, some of Slate’s favorite legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about the right to trial by jury, protecting informational privacy, amending the Constitution by national referendum, electing the attorney general, moving up the date of the presidential inauguration, and restoring the balance of war powers.

Judicial Term limits (Article III)

When I first heard academic chatter about doing away with life tenure for federal judges, I thought it was a bad, if not crazy, idea that threatened the Framers' plan to guarantee judicial independence. But more recently, against my instincts, I have found myself drawn to the notion. One version of this idea is simply to amend Article III, the provision in the Constitution about the federal judiciary, to provide term limits—the most commonly discussed limit is 18 years, as Steven Calabresi and James Lindgren have proposed. Another would be to make the change by statute, which would entail adding a new justice every two years (for two new appointments in each presidential term), with the most junior nine justices serving as the active Supreme Court. Everyone would retain their life tenure, but those who were more senior would sit in cases of recusals or absences and find other ways to amuse themselves (and presumably be strongly tempted to retire).

The statutory idea, put forward most notably by Paul Carrington and Roger Cramton, is quite clever. But since this is a discussion of constitutional amendments, I'll go all the way and say: amend. It's notable that not a single other country in the world has adopted American-style life tenure for their constitutional courts, although of course many countries have borrowed various other aspects of the U.S. judicial system. Among the states, only Rhode Island has life tenure. The 49 others have terms of years or age limits. Age limits are less preferable, it seems to me, because they put a premium on appointing quite young people—much as life tenure rewards youth today. It's no coincidence that John Roberts, at 50, was the youngest person to be appointed chief justice since John Marshall.

There are a number of rationales for ending life tenure. For me, the main one has little to do with the court itself—I don't think age or decrepitude is a major problem, and I would sign John Paul Stevens at 92 up for any task I could think of—but rather with court-related politics. Since Supreme Court vacancies occur so randomly (Carter with none, Nixon with four), each vacancy is a cataclysmic event for which the president's and Senate's business basically comes to a standstill. With the twice-per-term vacancies that the 18-year term limit would deliver, everyone would know that their party would have its share (assuming they could elect the right president) and it might lower the temperature surrounding each vacancy. People would vote for president knowing for sure, rather than in the abstract, that they were also voting in effect for two Supreme Court justices. I can think of plenty of practical and theoretical problems, and obviously this wouldn't be the magic fix for our broken judicial politics—but nothing else seems to be working, so I say it's worth a shot. I join Larry Sabato in calling for the following amendment to Article III:

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour for a non-renewable term of 18 years, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.