Saving this Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms

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.

Common Sense and Legal Science

The notion that law can be reduced to a science that yields truths as certain and universal as those of the physical sciences seems so implausible that efforts to characterize law in that way tend to strike most modern readers as either naïve or dogmatic. This Note seeks to challenge the assumption of some modern scholars that because nineteenth-century American legal theorists did describe law as a science, their use of the term “legal science” represented an attempt by the legal elite to obscure the inherently political nature of legal doctrine. At the same time, this Note challenges the claims of other scholars, who have defended the concept of law as a “science” by arguing that legal reasoning can yield deductively necessary and certain conclusions. Both groups of scholars assume that achieving legal certainty was the goal of nineteenth-century legal science and only disagree as to whether such a goal was intellectually justified. This Note argues that many nineteenth-century legal theorists aspired to transform law into a science not simply because they desired legal certainty, but because they desired legal knowledge. Specifically, such theorists as James Wilson and Gulian Verplanck developed a philosophy of law grounded in epistemological and metaphysical arguments of the Scottish Common Sense school of philosophy. For these theorists, such arguments seemed to justify their belief that they could discover legal principles through the same inductive, empirical methods that had yielded discoveries in the natural sciences. In other words, common sense philosophy allowed them to conceive of themselves as legal scientists.

Exclusion and Property Rules in the Law of Nuisance

This Article offers a theory of nuisance law based on information costs. Like trespass, much of the law of nuisance relies on a strategy of exclusion in which rights are defined using low-cost signals like boundary crossings that are only indirectly tied to particular uses. Nuisance law also supplements and fine-tunes this Blackstonian package of entitlements by means of a governance strategy, which relies on signals more directly tailored to particular uses. The information-cost advantage of strategies close to the exclusion end of the spectrum helps explain why, despite repeated calls for more balancing, nuisance law focuses on who caused invasions of whose land. Also consistent with an exclusion strategy are the staying power of traditional nonreciprocal notions of causation and the virtual nonexistence in nuisance of Rule 4 liability rules, under which plaintiffs would be permitted to invoke the law to force the polluter either to abate or shut down upon payment of the polluter’s damages. Applying Hohfeldian analysis, the Article shows that the common law gives polluters at most a privilege to pollute and that Rule 4 does not refine the basic exclusion regime but rather undermines it. The general question becomes when to soften exclusion with governance and the Article concludes by arguing that, in situations such as oil and gas fields and Boomer-style pollution cases with numerous victims, only small judicial governance-style safety valves are necessary, especially if legislative and administrative solutions are forthcoming. More generally, the information-cost theory of nuisance brings the utilitarian and corrective justice approaches to nuisance closer together. Nuisance law is not a mess or mystery but does contain within it the inflection point between exclusion and governance.