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Supreme court justices have it too good—A Commentary by Jack Balkin

The following commentary was published in the UK Guardian on May 6, 2009.

Supreme court justices have it too good: Life on the US supreme court has become too comfortable.
By Jack Balkin

Justice David Souter has many virtues as a jurist: he has been a modest, thoughtful and lawyerly voice on the US supreme court. But one of the most remarkable and praiseworthy features of his tenure has been his manner of leaving it. Souter is retiring voluntarily at the age of 69, after serving "only" 19 years on the nation's highest court.

From 1789 to 1970, supreme court justices served on the average a little less than 15 years. From 1970 to 2005, when President George W Bush made the first of his two appointments, the justices served an average of more than 26 years.

Justices serve longer these days because life expectancy is longer: the oldest justice, John Paul Stevens, recently turned 89. They also stay because the job has become one of the most enjoyable and powerful positions in the United States.

It was not always thus. The first chief justice, John Jay, resigned after six years to become governor of New York. His colleague on the court, John Rutledge, left to take the (then) more prestigious job of chief justice of the supreme court of South Carolina. Other justices departed to take a variety of posts or because of their political ambitions. No longer. With a limited docket of cases to hear, the assistance of four law clerks and enormous power and influence, a position on the supreme court has become more desirable than almost any other in American life. That is what makes Souter's retirement so extraordinary.

The constitutional tradition of life tenure for federal judges (the constitutional text actually says only "good behaviour") serves an important purpose. It limits the amount of political influence on justices to decide cases to please particular constituencies (while not eliminating it altogether).

But regular rotation of justices in office serves another valuable purpose: it gives presidents the opportunity to staff the courts with jurists who reflect the constitutional values of a changing political world. The supreme court thus reflects – and should reflect – a diversity of views from jurists appointed at different points in time.

In an earlier era of shorter life expectancies, and a less powerful institution, we had the best of both worlds: justices enjoyed life tenure and presidents had fairly regular opportunities to pick new justices. This has changed dramatically in recent years. For example, during an 11-year period between 1994 and 2005 there were no replacements at all.

How can we regain the benefits of judicial independence and regular rotation in office? A good rule of thumb would be that a president should be able to appoint a new justice every two years. In that way a president elected for two terms can appoint four justices – less than a majority, but still a significant share. Our last two-term presidents, Bill Clinton and George W Bush, got only two appointments each. Some one-term presidents, like Jimmy Carter, get no appointments at all.

Do we need a constitutional amendment to cure the problem? Not necessarily. One idea, suggested by a variety of constitutional scholars both liberal and conservative, is to pass a statute authorising a president to appoint (and the Senate to confirm) a justice every two years.

The quorum for deciding cases will consist of the nine justices most junior in service. The more senior justices will retain their commissions and life tenure. But they will hear cases with the full court only when one of the junior justices is recused or otherwise unable to perform his or her duties.

Senior justices can still consider petitions for certiorari (discretionary appeals), serve on other federal appellate courts and handle matters that regularly come before individual justices. But their caseload will be concentrated in their first 18 years of service. Interestingly, under the logic of this proposal, Souter leaves active service on the court at almost exactly at the right time.

This proposal should take effect 15 years after passage or after all of the current justices retire, whichever is later, so that no political party will have an unfair advantage. In the alternative, the reforms could begin after 15 years but the size of the quorum could expand until all of the current justices have retired. (Note that the supreme court's size has varied from six to 10 justices at different points in history.)

President Franklin Roosevelt's court packing plan – which was widely denounced at the time – was importantly different: it gave the president immediate authority to appoint new justices for each one over 70. This would have given Roosevelt six new appointments at once, strongly skewing matters in favour of his party. By making the provision prospective, and by spacing future appointments at regular intervals, we can be fair both to the parties and to the current justices.

One last reform would help encourage justices to retire closer to the desired target of 18 years. The supreme court currently has almost complete control of its docket. It is required to hear very few cases by law. As a result, it hears relatively few each year, now approximately 70. The opinions have gotten longer and more byzantine, accompanied by multiple concurrences and dissents.

That is hardly surprising, because most of the justices no longer write their own opinions – they are written by bright young clerks fresh out of law school. Word processing software and the internet have made it far easier to assemble lengthy and impressive looking essays. Moreover, because individual justices have ample time to state their own views at length, often there is no majority opinion.

In earlier years, when the supreme court was required by law to hear a variety of different cases, the justices heard two or three times as many appeals. The opinions were shorter, and there were fewer that lacked a majority. Ironically, there were also many fewer lower courts and state courts in those days, so that the supreme court heard a far larger percentage of cases. And instead of a contingent of four law clerks to draft their opinions, most justices had none or (later on) perhaps one or two.

We should increase the number of cases the supreme court hears. The number of lower court and state court opinions has exploded, while the supreme court's docket has shrunk. As a result, the supreme court's work is increasingly distanced from most of the country's decisional law. Lower federal courts routinely disagree on vitally important questions with no supreme court guidance forthcoming. Congress should either restore certain categories of cases to mandatory jurisdiction, or it should require the court to hear and decide a specified number of cases – say 200 – of its own choosing.

Either way, the life of a supreme court justice will change. The justices will have to do more work – and a larger variety of work – than they have in recent years. (Lower federal court judges, it should be noted, already must hear and decide far more cases than the relatively pampered justices do). This will have salutary effects on the number of supreme court opinions produced, as well as their length. It will also tend to reduce the number of conflicts in federal law and increase supreme court supervision over the lower federal courts.

Equally important, expanding the court's docket will also require more energetic justices who can handle a larger caseload. As a result, over time, more justices will find it attractive to retire early and enjoy a generous pension. In this way, we can create incentives for regular retirements and for the supreme court to do its job better without requiring anyone to leave the bench early.

Political pundits often complain about the supreme court's work and argue heatedly about who should (or should not) get the next appointment. But they rarely pay attention to the basic structures behind the court's actions, structures that shape the way the court does its job. David Souter's early retirement has put those questions before us. For this, and for 19 years of exemplary service, we owe him our thanks.