The Decision to Retire

[Craig Oren]

By going to the site,
http://oyez.nwu.edu/justices/justices.cgi?command=list_chrono, I got a
list of Supreme Court justices with dates of service. I count 38 justices
who served or are now serving more than 18 years, including Marshall,
Story, Taney, the first Harlan, Holmes, Brandeis, Black, and Douglas. I
did not count chiefs like Edward White who had less than 18 years on the
Court as associates, and then were appointed to the Chief Justiceship, and
served less than 18 years as Chiefs. (Would this 18-year term idea bar
promotion of justices, just as Michael wants to bar re-appointment??).
Because life expectancy and quality of life for the aged have improved,
there has been a recent rash of Justices who served for more than 18 years
-- Stevens and O'Connor are examples on the current court.

The 18-year term idea strikes me as, to use a cliche, using an H-bomb to
kill a very small rabbit. Life tenure has immense symbolic importance to
the independence of the federal bench. The evidence that justices retire
straategically,  although powerfully argued by Mark Tushnet, does not strike
me as sufficient for doing away with life tenure.

On Sat, 9 Sep 2000, Michael Froomkin - U.Miami School of Law wrote:



> On balance (and the cost is the loss of many years of valuable service
> from some fine justices), I'd think I'd be tempted by this change.  It
> feels fair.  But only if re-appointment were impossible.  Otherwise there
> are a new set of perverse incentives imaginable.  I'd also like to know
> how many justices have served more than 18 years.


>
> I can see some tough problems, though, that might make me change my mind.
> If a Justice dies or resigns before the 18 years are up, does the current
> President's new nominee get an 18 year term, or just the unexpired
> portion?  What if the remaining part is small?  If we don't relax the rule
> against re-appointment, it means some justices have very short terms; and
> there is evidence of a learning curve, not to mention institutional costs
> of a revolving door court.  If we do relax it, that's as good as undoing
> life tenure.  And if it's an 18-year term, pretty soon we are more or less
> back where we started, aren't we?
>
> Presumably after 18 years [or less in the case of a term-filler?] the
> justice could still sit on courts of appeal by designation, which might
> get interesting too.
>
> Here's another way to cast the underlying problem:
>
> Suppose we believe that Justices retire strategically with en eye to
> keeping the control of a given seat in a particular party's hands.  This
> creates a great modeling problem: what assumptions about justices'
> abilities to predict their own health and political changes does it take
> to create a model in which, once 'captured' by a particular party, seats
> stay in its hands?  At what level of foresight does a court become
> 'captured' by a party fortunate enough to be in control due to random
> fluctuations?  I doubt there an optimal age for a president to appoint a
> justice if control is the issue, since younger will usually be better, but
> one might test that hypothesis too.
>
>
> On Fri, 8 Sep 2000, Michael Rappaport wrote:
>
> >         The discussion about the reasons for Supreme Court Justice retirements has
> > been interesting.  Let’s assume that at least some justices choose to
> > retire based on the politics of the president in office.
> >
> >         My question is whether people on the list regard this as unfortunate
> > aspect of our system.  I would argue that it is problematic that judges who
> > are supposed to be non-political, in at least certain senses, are given the
> > opportunity to decide this very political question.
> >
> >         To put the question a little differently, we could adopt through amendment
> > a system of staggered 18 year terms for the Justices that would have a
> > justice retiring every 2 years.  While one might be for or against this
> > term limited system on other grounds, I would argue that at least one
> > benefit of this system is that it takes away from the justices the
> > political decision whether to give a particular president the appointment
> > of their seat.
> >
> >         The main argument that I can see for allowing justices to keep this power
> > is that it gives some power to the justices to replicate themselves (for
> > example, liberal justices try to get themselves replaced with liberals).
> > Thus, it places limits on the ability of the political process to change
> > the composition of the Supreme Court too quickly or too significantly.
> > Some might regard this balance of power argument as an advantage, while
> > others would deem it a disadvantage.
> >
> >         Are there other arguments for the existing system?  Does anyone believe
> > that justices should be able to make these political decisions?
> >
> > Mike Rappaport
> > Univ. of San Diego School of Law
> >
>
> --
>                 Please visit http://www.icannwatch.org
> A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
>                         -->It's hot here.<--
>

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