Life Tenure: An Idea Whose Time Has Passed

Sandy Levinson

I will gladly accept the invitation of my friend Marty Lederman to say a few words about life tenure, largely because I can also bring to your collective attention a new collection co-edited by Roger Cramton and Paul Carrington, REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, just published by the Carolina Academic Press. It brings together a collection of people from across the political spectrum (including, for example, Steve Calabresi, one of the founding fathers of the Federalist Society). Most, though not all, of the participants oppose life tenure. Calabresi and his Northwestern colleague Jim Lindgren point out, for example, that the average length of tenure between 1911-1940 was 16 years and dropped to 12.2 years between 1941-1970 )perhaps skewed by the one-year term of James Byrnes and the 4 or 5 year term of Charles Whittaker). The average length between 1970-2005 is 26.1 years! And the average age of leavetaking in this period has been just short of 80. This is crazy. Almost no other country has this kind of "real" life tenure, as distinguished, say, from "life tenure with age limits." And most countries, at least in constitutions written since World War II, have wisely chosen to have limited terms for their highest courts.

The best defense of our system is offered by Ward Farnswroth, who offers a shorter version of an article that has also been recently published in the Illinois Law Review. Farnsworth is an interesting (and independent) thinker, but I think it's fair to summarize his argument as of the "if it ain't broke, it doesn't need fixing" genre. He freely admits that no one advising some other country on "constitutional design" would suggest the US system. Most of us believe that the system IS broken, for reasons ranging from the political gaming of appointments (with an incentive to appoint youngsters) and resignations, not to mention the fact that a depressing number of judges have stayed on even after losing (at least) a step in mental acuity. The worst example was William O. Douglas, but, alas, he's not the only one. (David Garrow has a piece in the Carrington-Cramton book on this.)

The major disagreement between Calabresi-Lindgren and myself is whether one would need a (practically unattainable) constitutional amendment in order to establish term limits (we all agree that 18 years would be the right term) or whether this could be done by legislation. My piece in the book argues for the latter, since the Constitution simply does not SAY "life tenure." It, instead, says that a judge can't be impeached so long as his/her "behaviour" is "good."

My thanks to Marty for giving me this chance to plug an interesting collection.
Posted 4:08 PM by Sandy Levinson [link]