Probably more than most people, I think there are a lot of things wrong with the Supreme Court.  But, I don’t believe lifetime tenure is one of them.  James Fallows does.

It’s clear that people live much longer today than they did when the Constitution was written.  But, the average lifespan of a Supreme Court justice has only increased a few years in that time.  Still, Supreme Court justices are leaving the court at later ages than before, and their tenures have gotten longer:

This shows a few decades of longer average tenures, but is this a permanent trend that requires a permanent solution?  Does it really require a solution at all?  If justices are eligible to serve into their last, feeblest years, what does it matter whether those years come at age 50 or 100?   On the other hand, if the Court had nine 80-year-olds in perfect health, that would bring much more life and professional experience to bear on the Court’s work.  If the Court has the same group of justices together on the court for a long time, I’m not sure we can say that’s categorically good or bad.

I would totally support a removal process for justices who become too unhealthy or incompetent to do their jobs in the long-term.  But, we don’t need to assume old justices are unfit or young ones aren’t, and we don’t need to assume a long duration of service is necessarily a bad thing in terms of performance.

Another reason people argue against life tenure is that some presidents have more effect on the composition of the Court than others.  At one time, nearly all justices were appointed by Democrats.  At another time, most were appointed by Republicans.  Also, justices can strategically retire when a preferred president is in office.  Does this limit democratic input on the balance and composition of the Court?  It limits the frequency (and perhaps regularity) of that input, but I am not sure it limits the input.  A justice can choose when to retire, but the people still pick the president and Senate to do the nominating and approving. Justices can only pick a preferred president if the country elects one.  The examples of a one-party court only happened during prolonged years of success by one party, which reflects democratic input too.  If there’s a problem here, it’s a small one.  And it may not really be about the tenure issue.

The reason we look at stuff like this is because the Supreme Court is so politicized.  Maybe we’ve done everything we could to de-politicize the Supreme Court, but maybe they just politicized themselves.  If we really have to regulate how often each party gets to pick a justice, while still pretending the Supreme Court is immune from the political process, that’s a sign of much larger problems.  The Constitution, which gives explicit lists of powers for other branches of government, gives the Supreme Court all judicial powers.  There’s no limited list.  It’s not only open-ended, but it’s the job of the Supreme Court to interpret its own powers.  It seems like five Supreme Court justices can do anything in America, whether their terms are for life or for a year.  I think that’s that the source of a lot of people’s discomfort with the Court.

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