Fixed terms for Supreme Court Justices

[Bryan Wildenthal]

It is true that the transition from the current system to the staggered
series of 18-year terms would be somewhat complex.  I confess I haven't
taken the time to dream up a scheme for how to do it, but I assume Calabresi
& Oldham, in the forthcoming article Jim Lindgren has alerted us to (are you
a third co-author, Jim?), will propose some method.  I think it would be
unconstitutional (or extremely "constitutionally unethical," if there is
such a thing, if done by constitutional amendment) to curtail the
presumptive life term of any sitting Justice.  The 22nd Amendment expressly
(and properly, in my view) exempted the then-sitting President.

I don't think the fact that some Justices would get appointed to (possibly)
very short unexpired portions of terms (due to death or early resignation)
is much reason to oppose the idea (among the various thoughtful concerns
Rich Friedman has raised).  Apparently, under Calabresi & Oldham's approach
(as described by Lindgren) any Justice would get the "golden parachute" of a
life tenure lower federal court appointment after the expiration of the
Supreme Court Term, not a bad deal all in all, even if one only gets to
serve, say, a single Term on the Supreme Court.  Someone who is anxious
enough to get one of the full Supreme Court terms, and confident enough of
some future appointment, could always decline a short unexpired-term
appointment.  Fascinating dilemma for the judicially ambitious.....

One might suppose that even under fixed terms, a Justice might resign
strategically early to give the sitting President a chance to appoint a
successor, but the fact that the successor could not serve past the
expiration of the resigning Justice's term would make that rather pointless
and thus unlikely.

I don't know what Calabresi & Oldham will propose, but I would propose
making the post-Supreme Court appointment on the Courts of Appeals, or
perhaps give the retiring Justice a choice whether it is district or
appellate, and also a choice where to go geographically (even if a given
Court has no pending vacancy at the time, they could always presumably use
the extra judge, and a vacancy would open up soon enough that could then be
"retroactively filled" by the addition of the retiring Justice).  Query:
would they all go to the District of Hawaii, or SD Cal (San Diego)?

Alternatively, one could make a Justice appointed to an unexpired term of
less than a certain length (say, 6 years) eligible for re-appointment to a
full 18-year term when the initial term expires.  That would raise the
potential compromise of independence and temptation to curry favor with a
sitting President, but of course, sitting lower federal court judges face
the same temptation.  But it's probably much worse to have a sitting Supreme
Court Justice under that potential influence.  Perhaps someone appointed to
a sufficiently short unexpired term as Justice could remain eligible, not
for immediate reappointment, but for some future 18-year appointment, after
some suitable interval serving in the lower-court trenches, hence rendering
them mostly indistinguishable from the multitude of other lower-court judges
hoping for a presidential nod for a Supreme Court seat.  And the fact that
they would have, in any event, a guaranteed life appointment would tend to
immunize them from any undue pressure/influence.  If the interval before
becoming "re-eligible" is long enough (require at least 4 years?), the
Justice would be unsure what future President to curry favor with, rendering
any improper favor-currying less practical and thus even less likely.

I suppose Calabresi & Oldham may get into all these scenarios.  I am
starting to get really fascinated by the idea and looking forward evermore
to their article!

Bryan Wildenthal
Thomas Jefferson School of Law


-----Original Message-----
From: Richard D. Friedman [mailto:rdfrdman at UMICH.EDU]
Sent: Thursday, November 28, 2002 10:43 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Fixed terms for Supreme Court Justices


How would such a proposal work if a Justice fails to serve the term?  I
suppose there would be an appointment for the unexpired portion, rather than
for a new 18-yr term, because the latter solution would mean that eventually
the regularity of the staggering would eventually be broken down.  Even an
appointment for the unexpired portion would mean that there would be some
haphazardness in the toming of appoinrments, but not as much as there is
now.  Also, some justices would sit for very short terms.

I don't think the fear of aged justices hanging on past their time provides
strong justification for this proposal.  In the last century or so the Court
seems to have handled the problem pretty well on its own, by leaning on
justices who ought, in the view of hteir colleagues, to retire.  And even
with an 18-year term there is the possibility of the problem arising,
particularly if the fixed nature of the term encourages Presidents to
nominate older justices.

I also don't think that the problem of justices timing their retirements for
political reasons justifies the proposal, because, as I bleieve I've
saidbefore on tis list, I think the phenomenon of the politically timed
retirement occurs less frequently than many people think.  I don't deny that
it happens, but I think it is far from the norm.

The upside of the proposal is the relatively regular infusion of new blood,
which is of considerable importance.  One downside is that we boot off some
justices who are at the top of their form -- but of course fied ternures are
a regular part of our public life.  Another downside is that I think we
should be relatively cautious about tampering with our constitutional
system, especially with respect to the judiciary.  I don't think that the
recent imbalance of Democratic and Republican appointments, in relation to
time in the White House, is enough to justify the change.  Over the long
haul these things tend to even out.  In his first term, FDR didn't have a
single appointment; over the next several years, he replaced virtually the
entire Court.

Rich Friedman
University of Michigan Law School


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