June 2004, Volume 90, Issue 4|
Saving this Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms
90 Va. L. Rev. 1093 (2004)
Motherhood. Apple pie. Life tenure for United States Supreme Court justices. What do these three things have in common? An attack on any one of these "sacred cows" has come to be seen by many as an attack on America itself. But why should it be so for life tenure? Certainly, Alexander Hamilton and the other Founding Fathers intended the federal judiciary to be independent of and protected from the influences of the political branches of government, and life tenure was a vehicle for such an effort. But life tenure was by no means the only option, and, as this Note argues, not even the best one.
Life tenure for Supreme Court justices may have helped to insulate the robed tribunal from political pressures, but it has created considerable problems of its own. First, as justices have become more personally invested in their decisions, they have become more and more loathe to allow a president with opposing viewpoints to name their successors. The result has been strategic retirements—carefully timed departures—that allow presidents to fill vacancies with similarly like-minded judges. The phenomenon of strategic retirements has become increasingly worse as the Court has entered the "culture wars" of the post-Vietnam War era. Second, the present system creates incentives that reward presidents who name young nominees to the Court. The current system gives an improper incentive to a president to nominate a young candidate for the Court because a younger nominee generally ensures the perpetuation of the president's particular sociopolitical vision over a longer tenure. Finally, the current system creates an utterly random distribution of Supreme Court appointments among presidents. For example, something is amiss under the present system when one president can, by random chance, have three, four, or even nine opportunities to appoint a justice to the Court in one presidential term, while another president might not have a single nomination. It is potentially troubling for one president to enjoy the fortuitous opportunity to pack the Court when his successor may not have the opportunity to nominate anyone.
The best way to address these three problems bred by life tenure is to replace life tenure on the Supreme Court with a system of staggered, nonrenewable eighteen-year terms. Ending life tenure would require a constitutional amendment. The amendment proposed by this Note would eliminate the justices' ability to strategically retire, temper the incentives for presidents to nominate young justices to the Court at the expense of older candidates, and guarantee each president two nominations per term. Because justices could not be reappointed, the proposed amendment would arguably leave them with as much independence as they have under the current system. Moreover, even when a justice's term on the Court has expired, nothing would prevent him or her from continuing to serve on a lower federal court of his or her choosing for life. The amendment proposed by this Note ensures the protection of Hamilton's goal of an independent judiciary insulated from political pressures while preventing justices and presidents from playing political games of their own with the nomination process.
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