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By Paul M. Collins Jr .. University of Massachusetts Amherst
and Artemus Ward, University of Northern Illinois
The pressure on Supreme Court Justice Stephen Breyer to step down is likely to increase now that the court session is over.
Breyer, 82, joined the court in 1994. His retirement would allow President Joe Biden to appoint his successor and give Democrats another liberal justice, if upheld.
Judges of the Supreme Court of the United States are appointed for life. According to article 3 of the Constitution, judges cannot be removed from their functions against their will, except by indictment. This provision, which followed Britain’s precedent, aims to ensure judicial independence, allowing judges to make decisions based on their best understanding of the law – free from political, social and electoral influences.
Our extensive research on the Supreme Court shows that the lifetime tenure, while well intentioned, had unintended consequences. This distorts the workings of the confirmation process and judicial decision-making, and causes judges who want to retire to behave like political agents.
Problems with lifetime occupation
The life term has motivated presidents to choose younger and younger judges.
After World War II, presidents generally forego appointing jurists in their 60s, who would bring in great experience, and instead appoint judges in their 40s or 50s, who could sit on the tribunal for many decades.
And they do. Judge Clarence Thomas was appointed by President George HW Bush at the age of 43 in 1991 and said he would serve for 43 years. There are still 13 years to go before his promise is kept.
The newest member of the tribunal, Donald Trump candidate Amy Coney Barrett, was 48 when she took office in late 2020 after the death of Judge Ruth Bader Ginsburg, 87.
Ginsburg, a Clinton-appointed person who joined the court at age 60 in 1993, refused to retire. When the Liberals urged her to step down during Democrat Barack Obama’s presidency to secure a like-minded replacement, she protested, “So tell me who the president might have appointed this spring that you’d rather see on the pitch than me.” ?
Judges change over the course of their decades on the bench, research shows.
Judges who, at the time of their confirmation, espoused opinions reflecting the general public, the Senate and the President who appointed them tend to drift away from these preferences over time. They become more ideological, focused on enforcing their own political preferences. For example, Ginsburg has become more liberal over time, while Thomas has become more conservative.
The political preferences of other Americans tend to be stable throughout their lives.
The consequence is that Supreme Court justices may no longer reflect the America they preside over. This can be problematic. If the court routinely strayed too far from public values, the public might reject its dictates. The Supreme Court relies on the confidence of the public to maintain its legitimacy.
The lifetime tenure also turned the staffing of the Supreme Court into an increasingly partisan process, politicizing one of the country’s most powerful institutions.
In the 1980s and 1990s, candidates for the Supreme Court could generally expect broad bipartisan support in the Senate. Today, judicial confirmation votes are almost strictly the responsibility of the parties. Public support for presidential candidates also shows big differences between Democrats and Republicans.
The lifetime tenure can turn so-called independent judges into political actors trying to plan their departures to secure their preferred successors, as Justice Anthony Kennedy did in 2018. Trump appointed Brett Kavanaugh, one of the former Kennedy’s clerks, to replace him.
The proposed solution
Many Supreme Court experts have gathered around a solution to these problems: staggered 18-year terms with a vacancy occurring automatically every two years in non-election years.
This system would promote judicial legitimacy, they say, by removing departure decisions from judges. This would help prevent the tribunal from becoming a campaign issue, as vacations would no longer occur during election years. And that would preserve judicial independence by protecting the court from political appeals to fundamentally change the institution.
However, partisanship would still tarnish the selection and confirmation of judges by the President and the Senate, and ideological extremists could still reach the Supreme Court. But they would be limited to 18-year terms.
The United States Supreme Court is one of the few high courts in the world with a life term. Almost all democratic nations have fixed terms or mandatory retirement ages for their top judges. Foreign courts have encountered few problems with term limits.
Even England – the country on which the American model is based – no longer grants life tenure to its Supreme Court justices. They must now retire at 70.
Likewise, although many states in the United States initially granted their Supreme Court justices a life term, this changed during the Jacksonian era of the 1810s to the 1840s, when states sought to increase the accountability of power. judicial. Today, only Rhode Island Supreme Court justices are appointed for life. All other states either have mandatory retirement ages or let voters choose when judges leave the bench through judicial elections.
Polls consistently show that a large bipartisan majority of Americans are in favor of ending a life term. This likely reflects the erosion of public trust as the court routinely delivers partisan rulings on the most controversial issues of the day. While ideology has long influenced Supreme Court rulings, today’s court is unusual because all conservative judges are Republicans and all liberal judges are Democrats.
In April, Biden formed a committee to review reform of the Supreme Court, including limited-term judges. Ending the lifelong tenure of judges would likely mean a constitutional amendment requiring the approval of two-thirds of both houses of Congress and three-quarters of U.S. states.
Ultimately, Congress, the states, and the public they represent will decide whether the country’s centuries-old lifelong tenure system still meets the needs of the American people.
Paul M. Collins Jr. is professor of legal studies and political science at the University of Massachusetts at Amherst.
Artemus Ward is professor of political science at Northern Illinois University.
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