Sunday, December 13, 2015

Supreme Court justices deserve limits to their tenure

Lifetime appointments prolong arguments from past generations that are no longer relevant

The disastrous way Justice Antonin Scalia described how black students would benefit from attending “slower track” universities (PDF) shows us that racist beliefs are prevalent even within the institutions we normally assume are meant to protect everyone equally.

His generalization of an entire race, of implying that black students who are the recipients of affirmative action did not otherwise earn their place at prestigious universities, is a disgusting mark on his record, and a disproven idea at that.

Certainly, fifty years into the future, we will look back on Scalia’s tenure as one mired in many missteps, misstatements, and terrible jurisprudential positions; this latest comment from him will be among many others he has made that are an embarrassment to the position he currently holds.

But we don’t live fifty years in the future, and alas must deal with his actions in the present. Impeachment is the wrong route to take, unfortunately, as removal of a justice is much like that of a president -- it requires a compelling case of ill behavior, of a justice allowing personal political views to interfere with judicial decision making (beyond philosophical judicial arguments). What's more, it takes a supermajority of senators to affirm, once impeachment charges have been made by the House of Representatives.

It’s unlikely any justice (liberal, conservative, or moderate) could in reality face threats of impeachment in this hyper-partisan political climate. Only one justice has ever been impeached, and was acquitted of charges by the Senate in 1805:
The single justice impeached but subsequently not forced out was Samuel Chase, a longtime Maryland legislator who was appointed to the court as an associate justice by President George Washington on Jan.  26, 1796, and who served there until his death on June 19, 1811.

In 1804, eight articles of impeachment accused him of allowing his political views to interfere with his decisions.
Even with Samuel Chase serving as an example, it’d be incredibly difficult to muster up a case that could remove a justice for pushing their own political views on the Court, even if they are racist views.

A more compelling option might be to amend the Constitution itself, and require justices of the Court to serve out no more than twelve years on the bench rather than serve lifetime appointments.

Three presidential terms seems sufficient time for an appointment to have influence on the Court’s decisions. And it would allow a better flow of ideas, and of generational input, if the Court were required to have new justices more frequently.

The average justice has served 16 years on the Court over its history, with many others having served much longer time spans. Scalia himself has served since 1986, approaching thirty years total on the bench, which to me seems longer than is necessary.

Much has changed during that thirty year period. Having a justice serve that long serves no purpose, except to hold onto ideals that are no longer relevant to the current generation of American citizens. This isn’t just important for the left -- conservatives, too, would benefit from allowing more turnover to the Court.

It’s an idea worth looking into, but one thing is for certain: lifetime appointments to the Supreme Court have got to go. They provide nothing positive for the Court overall.


  1. Glad someone else has said this. I'd favor a constitutional amendment of 2 10-year terms for a justice. This allows the justice to outlast the tenure if any president who appoints him/her, and allows for reappointment by one future president.

    But 20 years is enough, and it also gets in the way of the GÓP strategy of appointing young federal judges so they can screw things up long after GÓP presidents leave the office (see Scalia, Alito, Roberts, Thomas).

  2. This comment has been removed by the author.