Learning From the Conclave

Sandy Levinson

Many things can be said about the choice by the conclave of cardinals of 78-year-old Joseph Cardinal Ratzinger to be the new Pope. One of them is that the cardinals, for all of their deep (and probably sincere) devotion to the departed John Paul II, expressed its deep desire that there be no possibility, barring what would truly be miraculous, of another quarter-century reign by his successor. The Catholic Church may, like the U.S. federal judiciary, be committed to life tenure, but the cardinals have done whatever they could to limit the actual term of service. Would that the United States Senate learn a lesson from what has just happened in Rome.

William Rehnquist has served on the Supreme Court for over a third-of-a-century; he has been Chief Justice for almost two decades. Consider his two predecessors: Earl Warren was on the Court for only fifteen years, from 1954-1969; Warren Burger retired in his seventeenth year, in 1986. This in fact is quite close to what a recent paper by Northwestern law professors James Lindgren and Steve Calebresi has demonstrated is the mean length of service of Supreme Court justices from 1790-1970, approximately sixteen years. Since then, however, the average term is over 26 years. Even if one defends life tenure on the Supreme Court—an idea that I and many others believe is an idea whose time has gone—there is no defense whatsoever for the ever-increasing length of actual terms.

Much has been written about the battles sure to be waged when Rehnquist steps down. Almost all of the anticipatory salvos have involved the ideologies of prospective nominees. Might Congress not pay some attention, however, to the age of the nominee? For example, Democrats should insist, as a price for their support or, at least, non-filibuster, that the nominee be at least 60, preferably 65.

There is something to the argument that winners of elections, especially if their party also controls the Senate, should have some leeway in packing the judiciary, including the Supreme Court, with ideological friends. There is nothing to the argument that that packing should extend literally a generation. My own preference would be that Supreme Court justices could serve an 18-year (non-renewable) fixed term. That would obviously allow a president to “pick young” (as with William O. Douglas or Clarence Thomas) or “go old” (as with Lewis H. Powell or Harry Blackmun). In the absence of such a sensible change, however, the only thing that the citizenry can do is to demand that youngsters wait their turn, not necessarily because there isn’t anything to be learned from the (relatively) young—there most certainly is—but because a sensible country would not appoint justices to de facto 30-year terms.

The cardinals in Rome were able to learn from experience and sent a very strong message in their choice of the elderly Ratzinger. Ironically, the oldest member of the current Supreme Court is the 85-year-old John Paul Stevens, about to begin his fourth decade on the Court. I like his judicial politics, but that is the only thing that can be said for what otherwise has to be recognized as an act of narcissistic vanity. Even if there is nothing we can do, practically speaking, to force justices to leave after an appropriate time of service, we can surely act to prevent such extended terms. Our motto when evaluating whoever is nominated to succeed Rehnquist (and other retiring justices) should be “Don’t Trust Anyone Under 65”!