The United States Supreme Court was called a "gerontocracy" at a Duke Law School conference April 9 th, likened to the leadership cadres of the Chinese Communist Party. But that party is a step up on the Court, said Northwestern University Law Professor James Lindgren in defending the charge: Its leaders are required to retire at 80, while justices serve for life.
"Reforming the Supreme Court?" brought together top constitutional law and Supreme Court scholars for a spirited discussion of the costs and benefits of life tenure for justices, and an exploration of possible alternatives. Organized by law professors Paul Carrington of Duke and Roger Cramton of Cornell, who have co-authored a statutory proposal to limit Supreme Court terms, the conference was sponsored by the Program in Public Law.
Lindgren opened the conference with a look at Court statistics: While the average age of justices at the time of their appointments has long been steady at 53, the average retirement age has risen to 79, up from 68 for those retiring before 1970. Since 1970, too, the average length of service for justices has jumped from 14.9 years (more or less a constant since 1789) to 25.6 years. Among the reasons offered by participants for justices' working well into their 70s and 80s: improvements in health care resulting in increased longevity, and a workload in steady decline, partly due to the Court's power to select the cases it takes-the "certiorari power"-and partly the result of delegation to clerks, whose numbers have quadrupled in the past 60 years.
"It is entirely possible for a justice in decay and decrepitude to grind out opinions with the help of clerks," alleged Daniel Meador of the University of Virginia.
A return to the 1946 standard of one clerk per justice would heal whatever ails the Court, maintained David Garrow of Emory University Law School, a supporter of life tenure.
"Everyone know that it would be a better Court if the role of the clerks was dramatically reduced."
Others found much more to criticize, alleging that Justices lose touch with the real world after decades in the Court, and noting that a long drought in vacancies-the last came 11 years ago-increases the rancor of the confirmation process, and encourages the appointment of youthful, inexperienced, idealogues, as well as "strategic retirements"-justices hang on past their prime in order to give a certain president or party a chance at an appointment. The Supreme Court, it was noted, is unique among American institutions and world courts, in placing individuals in office indefinitely.
A number of reform proposals called for justices to serve 18-year terms on the Supreme Court, rotating on at two-year intervals. That would ensure that most one-term presidents would be able to fill two vacancies.
"Knowing that a vacancy was going to open up at regular intervals would lower the stakes for filling any one vacancy now," said Steven Calabresi of Northwestern Law School. "Knowing that you were only confirming somebody for an 18-year term, not potentially for a 35-year term, would also lower the stakes greatly."
On the other hand, countered Ward Farnsworth of Boston University Law School, term limits could embolden presidents to nominate more ideologically extreme nominees who would get waived through the approval process on the theory their extremism would be offset by a later nominee.
"Life tenure and keeping the stakes of the decision very high forces a lot of compromise, and forces more moderate people. That's exactly why Robert Bork wasn't confirmed, and why Justice Kennedy was."
Most of the term-limit proposals contemplated life appointments to the federal judiciary; on the expiration of their Supreme Court terms, justices would take seats on lower courts of appeals.
For his part, Farnsworth expressed skepticism that having developed a taste for life at the top, justices would make the transition happily. Those who knew they would be relatively young and vigorous at the end of their terms could spend their term angling for a more glamorous post.
"I worry that [they] will think ahead: "How is what I'm doing here on the Supreme Court going to affect my prospects when I leave?'"
Whether change, too, would best be accomplished by constitutional amendment or by statute also came up for debate.
"There's nothing in the constitution that says they serve for life, it says "for good behavior,'" said Carrington. "Congress can define that in ways that do provide encouragement, inducement and, indeed, even requirements for them to step down at some point. The one thing Congress can't do without violating the good behavior notion is to employ some kind of system which is intended to influence the decision of particular cases."
The bottom line, he argued, is that requiring a constitutional amendment renders the whole discussion moot. "One the problems with our Constitution is that it's very hard to amend."
Quite apart from the deeply held belief by many reform proponents and opponents alike that life terms are constitutionally mandated, and thus require a formal amendment, a number expressed alarm at giving Congress an opening to tinker with the Court by statute. They repeatedly invoked the controversy over various judicial rulings in the recent Schiavo case.
"Once Congress starts tinkering by statute with the tenure of justices, they'll be tempted to tinker with it again to change the outcome of cases that they might not like, that the Court would hand down. I don't want to give Congress that power," said Calabresi.
While the debate was both fierce and friendly throughout the conference, Cramton was clear that it was intended to produce practical, not theoretical, results.
"We've started talking with the Senate Judiciary Committee, and we're going to have conversations with the staff and try to identify some senators on both sides who might want to support legislative hearings on the topic, so they could hear the kind of debate that's going on here, as to whether there is a problem that needs attention, and, if so, what could be done about it."A webcast of "Reforming the Supreme Court?" will be available shortly at http://www.law.duke.edu/webcast.