WHENEVER the subject of judicial reform is brought up, people start getting nervous. Some falsely believe that every procedural aspect of our nation's judiciary is spelled out in the Constitution, and that any interference is thus "unconstitutional." Others resist court reform on the strength of the old adage, "If it ain't broke, don't fix it."
However, there is one aspect of our court system that is fundamentally flawed: life tenure for Supreme Court justices. Current efforts at ending life tenure are motivated by principled concerns and will produce some real benefits. Northwestern University Law Profs. Jim Lindgren and Steven G. Calabresi have floated a proposal that would impose an 18-year term limit on Supreme Court justices, aimed at curbing a serious problem that has arisen in Supreme Court politics in recent years: senile justices.
The judiciary, at which the Supreme Court sits at the head, is of course the "third branch" of government, but we often fail to scrutinize functioning of the Supreme Court with the vigor as the other two branches. Consider, for example, the fact that the Chief Justice of the Supreme Court, the octogenarian William H. Rehnquist, has been so ill over the past half year with cancer that he has been unable to attend oral arguments -- this in a body is supposed to rely on reasoned deliberation among the justices. It seems to undermine the entire rationale of the Court when we would rather turn a blind eye than seriously consider the implications of having elderly justices whose health impairs their effective functioning on the Court.
A survey of the recent history of the Supreme Court confirms that justices are increasingly staying on the Court past the time when their mental facilities begin to deteriorate. Lindgren and Calabresi note that the average tenure of Supreme Court justices has leaped from an average of 15 years for justices who retired from 1789 to 1970 to an average of 25 years for those on the bench since. No justice has retired in over a decade, while only one justice, Clarence Thomas, is under 65 years of age. This increase in judicial tenure has brought a number of justices who have served on the Court while mentally decrepit. William O. Douglas insisted on remaining on the Court after suffering an incapacitating stroke in 1974, while Thurgood Marshall at the end of his term in the late 1980s often simply voted the same on cases as fellow octogenarian William Brennan because he could no longer hear well enough to understand the justices' conferences.
What is especially disturbing about this lengthened tenure is the increased importance the aging justices seem to ascribe to themselves: They become out-of-touch with the political process, and their rulings increasingly reflect their own political prejudices. Harry Blackmun, who became an active campaigner for abortion rights after writing the Court's decision in Roe v. Wade, wrote in one dissenting opinion to an abortion case in 1992: "I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today [abortion]." This spirit evident in this sort of blatant political appeal is reflected in the late careers of several justices, who with increased time on the Court and in the national spotlight grow to embrace an openly political role and hold their seat as a sort of protest against current political movements. Thus, Justices Brennan and Marshall stayed on the Court well past their primes, vainly, in hopes that a liberal president would appoint their successor.
Opponents of life tenure note that many elderly justices are capable of functioning well on the Court and fear that term limits will lead to a loss of good justices, increase the politicization of judges who will have to look for careers after retiring and denigrate the prestige of the Court. Yet 18 years is a sufficiently long time to maintain the prestige of the Court while combating judicial entrenchment. Moreover, the costs imposed by the ill health and entrenched mentality of older judges, and the benefits of injecting of fresh legal thinking into the Court, far outweigh the few elderly judges who are able to participate at full strength in Supreme Court business.
The Supreme Court has gradually come to take on a more politicized role in our society, frequently imposing its own will on the political process. It should not be too much to ask that the men and women who make these substantive value choices do so while of sound mind and health.
Noah Peters' column appears Mondays in The Cavalier Daily. He can be reached at npeters@cavalierdaily.com.
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