Inventing a Crisis (of Constitutional Proportions)?

Recently, attention has started to turn to the life tenure afforded to Justices of the United States Supreme Court. Pursuant to Article III, Section 1 of the Constitution:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

In the New York Times, Linda Greenhouse notes,

Judges depart from the lower federal courts with regularity, assuring a steady turnover. Supreme Court vacancies, on the other hand, are rare events. It has been nearly 11 years since the last one, when Harry A. Blackmun stepped down at age 85 after 24 years on the court.

The trend is clear. From 1789 to 1970, the average Supreme Court justice served for 15.2 years and retired at 68.5. But since 1970, the average tenure has risen to 25.5 years and the average age at departure to 78.8.

She summarizes some of the main objections to the status quo:

The academic critics see a variety of negative consequences from life tenure. One is that the scarcity and randomness of vacancies promise to turn each one into a galvanizing crisis. Other drawbacks include the temptation for justices to time their retirements for political advantage; an overemphasis on youth and staying power as a qualification for nominees; the likelihood that even those justices who escape the infirmities of old age - and, predictably, not all will escape - will tend after many decades to lose touch with the surrounding culture; and the fear that if the court is seen as out of touch and unaccountable to a democratic society, its legitimacy will erode.

So we have... a fear of what might theoretically happen in the future as a basis for amending the Constitution.

Now granted, if half the Justices on the Supreme Court were senile or left incapable of performing their services due to advanced age or illness, that could present a crisis. And at present Justice Rehnquist's health is in question, raising the question of whether he will be able to return to the Court (and, if not, why he does not announce his retirement). But speculation about one Justice's illness, or sneering speculation about how Justice Thurgood Marshall was supposedly senile by the time he retired from the Court in 1991, does not seem to me to be compelling evidence of an emerging crisis.

I am also less impressed than many with the notion of Justices timing their retirements "for political advantage". I see nothing which would indicate that the present set of Justices has attempted such timing, despite the speculation tossed about four years ago when many asserted that Justices Rehnquist and O'Connor decided Bush v Gore in favor of G.W. Bush so that they could retire under a Republican President. If Rehnquist was salivating to retire four years ago, when he was in comparatively sound health, is it not peculiar that he continues to cling to his gavel? Unless, that is, he intends to time his retirement based upon when he no longer feels capable of performing his job duties, and intends to keep the job he enjoys and believes himself to be very good at performing.

Greenhouse also describes a proposal which would have Supreme Court Justices appointed to eighteen-year terms, with staggered appointments such that a new justice would be appointed in each odd-numbered year, while the Justice whose term was expiring would be assigned to status as a "senior justice" no longer actively participating in the Court's decision-making activities. That would allow the President to appoint two new justices during each four-year term of office. She notes the response of a law professor, Ward Farnsworth, who suggests that "could magnify presidential power and make the two guaranteed appointments each term come to seem like the spoils of political victory."

But there are more objections. First, a President looking to appoint a Justice to an eighteen-year term is more likely to choose somebody who is neither likely to be derided by opponents to the appointment as "too old" for a term of that duration. While it is already a consideration, this might also magnify the extent to which a Justice's possible future health is considered during the selection process. While under either system an unexpected health crisis by a Justice precipitating retirement may seem like a windfall opportunity for a President, the phenomenon of "appointment envy" might be exaggerated if a President were concerned that a successor might get "more than his share" of appointments. (Or should we assume that Presidents are less petty than that?)

It is interesting that some of the advocates for change, while suggesting that Justices may be manipulating their retirement dates such that their successor will be appointed by President with a similar political ideology, don't believe that the same type of manipulation would occur if Justices served fixed terms.

A justice seeking to outfox the new system might be tempted to resign before the end of his or her term whenever early resignation might offer advantage to a preferred successor. Such manipulation should be deterred by a general sense of fair play. In an analogous situation, a president might be tempted to resign a few months before the end of his final term, thus placing his handpicked vice president in power before the November election. Yet all past presidents facing this situation -- most recently, Eisenhower, Johnson, Reagan and Clinton -- have spurned this sort of manipulation. If even elected presidents pursue nonpolitical exit strategies, America should demand no less from unelected justices.

But if we're willing to suggest that Justices engage in political exit strategies under the present system, and given that it would be relatively easy for a Justice to claim a health condition or personal crisis as an impetus for retiring near the end of an 18-year term, why should we not believe that a Justice would "preserve the balance" of the court by tendering an early resignation? Also, part of the reason Presidents don't manipulate their retirements in the manner described is that it would cause a popular uproar, and quite possibly a backlash against the appointed "incumbent". Given that the typical American can't name more than one or two Justices of the Supreme Court, I doubt that early retirements of Supreme Court Justices would generate similar attention or controversy.

Further, we can be assured that some Justices will leave office early - whether due to accident, illness, or even through the political manipulations described above. Would the successor of a Justice who retired early be appointed for an 18-year term, messing up the "odd year appointment" system into the indefinite future? Or would that Justice go to senior status upon the predecessor's regularly scheduled retirement date, in which case the appointment would be an excellent reward for a political crony, but would pretty much guarantee that a President would not nominate a candidate he truly wanted to serve out a full 18-year term - that is, a candidate he believed to be most qualified for the position - to such a limited term.

I also wonder if this relatively complex system of slow-motion musical chairs has been proposed instead of the relatively simple solution (to the extent that one is needed) of a retirement age, because of concern that imposing a mandatory retirement age for Supreme Court Justices will cause Presidents to bypass highly qualified, highly competent candidates in their late fifties or early sixties in favor of younger, less qualified candidates who can be expected to serve for a longer period of time. It has been suggested that Justice Thomas was selected, at the age of 43 because of his relative youth and the anticipated length of his service. Whatever you think of Justice Thomas, it seems fair to suggest that we should not create a system that further disfavors many of the best candidates for the Supreme Court because of fear that their service would be "too short".

I note also that the proposals don't include the possibility of reappointment, perhaps with a shorter term of service. One need only imagine the reconfirmation hearings, assuming a change in the composition of the Senate, in order to assess why this isn't high on the list of proposed reforms.

But in any event, I don't think we should set out to look for a crisis. If an actual crisis does emerge on the Supreme Court, and we find that it is dominated by judges too enfeebled or senile to perform their assigned tasks, that is a problem we should be able to address in relatively short order at that time. For now, there is every reason to believe that despite their increased lifespans and terms of service, the Justices will continue to retire when they are no longer able to perform their jobs.