Judges For Life

by Lee Gesmer on July 19, 2007

Andy Updegrove provided me with an article by Roger C. Cramton, Professor Emeritus at Cornell Law School, which Andy (a Cornell Law alum) thought was particularly interesting, and I thought it was worth sharing here. The article, entitled Reforming the Court: How Long is Too Long (published in a Cornell Law alumni magazine) is based on the introduction to a book by Professor Cramton and Professor Paul Carrington of Duke Law School, entitled Reforming the Court: Term Limits for Supreme Court Justices.

Of course, the titles of the book and article state the authors’ thesis. The article, based on the introduction to the book, is thought provoking. Here are a few “facts” taken from the article:

  • Between 1970 and today the average length of service on the Supreme Court has grown from 15 years to 26 years

  • During that time the average age at which a Justice retires from the Court has increased from 68 to 79

  • Statistically speaking, John Roberts, who was appointed at age 53, has a life expectancy of 30 years, and could be sitting as Chief Justice in 2037, or even much later

  • Before the recent vacancies created by the death of Chief Justice Rehnquist at age 80 and the retirement of Justice O’Connor at the tender age of 75, the Court’s membership had been unchanged for 11 years

The idea behind the book and article is that in 1789, when life under the U.S. Constitution began, life expectancy at age 50 was half what it is today; the Founders never anticipated that Justices would sit so long, or that the Court could remain unchanged for so long. The authors propose what they think is a reasonable solution: limit any one USSC Justice’s term to life or 18 years, whichever is shorter (no, they didn’t actually express it that way, my joke). After 18 years, an aspiring Justice who wants to keep working can stay busy riding the circuits on the U.S. Courts of Appeals.

In the United States, most people seem to be anxious to retire (relatively) young and enjoy life. Studies have shown that by age 65 fewer than 18% of males are in the work force. Why is Justice Stevens still sitting at age 86 (32 years after being appointed by Gerald Ford)?

Professors Cramton and Carrington attribute this to the increasingly cushy nature of the job. Consider: each Justice writes only 8 or 9 opinions a year (the total number of decisions is down by about half in the last 20 years, and down much more from early in the 20th Century), has three highly qualified and motivated law clerks to help with this workload, a six week winter break and a three month summer recess, free world travel (paid for by various organizations), professional accolades, and enormous political power in our three-headed system of government. And, of course, no real “boss” to speak of. The other Justices can yell at you, but they can’t fire you. Of course, because USSC Justices don’t try cases they don’t suffer the stresses of the courtroom, which can be significant on both lawyers and judges.

Should this change? I think it should. I agree that Supreme Court Justices should not spend 30 or 40 years, into their 80s (and with modern medical technology, maybe their 90s or longer, who knows?), in such a position of power and influence. Is a Constitutional Amendment that would put the equivalent of term limits on Supreme Court Justices in the cards? Don’t hold your breath (or delay your retirement). And, I’d hate to be the lawyer that has to defend any legal attack on such an amendment, should it make it to the Supreme Court.

Footnote: Of course, this “nine old men” business has had its turn before, as far back as 1937. John Grisham made great fun of nonagenarian USSC Justices in his 1992 book, The Pelican Brief. (“He was ninety-one, paralyzed, strapped in a wheelchair and hooked to oxygen. His second stroke seven years ago had almost finished him off, but Abraham Rosenberg was still alive, and even with tubes in his nose his legal stick was bigger than the other eight. . . . Rosenberg insisted on writing his own opinions . . . slow work, but with a lifetime appointment, who cared about time?”).

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