Fixed terms for Supreme Court Justices

Bryan Wildenthal bryanw at TJSL.EDU
Wed Nov 27 14:45:19 PST 2002


I think there is considerable merit to the idea of fixed, nonrenewable
Supreme Court terms.  It would ensure longer-run stability and
evenhandedness in terms of which Presidents get the opportunity to replace
Justices.  Democrats like myself find it irksome that, through bad luck or
otherwise, Presidents Jimmy Carter and Bill Clinton, during 3 terms,
appointed a grand total of only 2 new Justices, while Presidents Reagan and
Bush Sr, in 3 terms, got the opportunity to make 5 new appointments (6 if
you count the elevation of Rehnquist to Chief).

However, I think 9 years is much too short.  Since the term would have to be
nonrenewable (to avoid obvious potential compromising of judicial
independence), I think 18 years would be more reasonable, one seat opening
up every two years (say, on July 15 every odd-numbered year -- is my lawprof
math correct there? would that work right?).  That would allow Justices to
benefit from what is probably a long learning curve and really hit their
stride.  Also, it would help to promote stability and continuity in the
development of Supreme Court precedent (something which is generally
promoted, but in a sometimes haphazard and uncertain way, by the current
life tenure system).

I would generally oppose any mandatory retirement age, such as (I believe)
some states and European nations have.  Some of our greatest Justices have
demonstrated great achievement at advanced ages.  And yet there is no
denying that some Justices have hung on past the point of diminishing
returns in terms of feebleness from advanced age.  A single 18-year term
would be a somewhat graceful way of avoiding that indelicate problem much of
the time, while still allowing ample time for an especially brilliant
judicial mind to make a lasting contribution.  It would balance the needs
for stability/continuity, for regular infusions of fresh blood, and for
somewhat predictable turnover.

I think it is especially unhealthy for the Court to go long periods with NO
fresh blood whatsoever -- and I would note again, as I have in the past,
that we are now in the NINTH year of the second-longest such period in U.S.
history (1812-23 being the record holder).  I think it breeds a certain
staleness and rigidity on the Court.

Bryan Wildenthal
Thomas Jefferson School of Law


-----Original Message-----
From: Robert Justin Lipkin [mailto:RJLipkin at AOL.COM]
Sent: Wednesday, November 27, 2002 8:55 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Constitutional Construction


In a message dated 11/27/2002 11:24:39 AM Eastern Standard Time,
Allan.Ides at LLS.EDU writes:



Do folks think the US would be better off if SCt Justices served a
single term of determinate length?  The French constitutional court,
for example, has rotating 9 year terms that are staggered so that every
3 years, the terms of 3 members expire.




       I, for one, would be inclined to endorse "a single term of
determinate length." I find it astounding that in a democratic society which
has a constitutional limit on the tenure of the chief executive, and, at
least in principle a political limit on the tenure of members of Congress,
that we rarely debate limiting the terms of federal judges, especially, the
Justices of the Supreme Court. My astonishment, of course, is due to the
fact that the judiciary is the only branch not directly accountable to the
people, and therefore, in my view, is the branch of government that should
more likely be subject to term limits than any other branch.

Bobby Lipkin
Widener University School of Law
Delaware

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