BY TORY JACKSON
A recent debate sponsored by the Federalist Society examined whether Supreme Court Justices should enjoy life tenure. Before a crowd of 80 students, Professor Steven Calabresi of Northwestern Law School and Professor Ward Farnsworth of Boston University School of Law presented very different views about life tenure on America’s highest court. The debate was moderated by HLS Professor Einer Elhauge.
Professor Calabresi, Co-Founder and current Co-Chairman of the Federalist Society, has proposed a constitutional amendment limiting Supreme Court terms to 18 years, and providing that a seat would open every two years. Professor Calabresi’s research has shown that since 1970, the average length of Justices’ terms have increased dramatically, as has the age at which they retire. From 1790 to 1940, the average term was 14.9 years; from 1941-1970, it was 12.2. From 1971 to the present, however, the average term is more than 26 years. Likewise, the average age of retirement since 1970 is 79 years old, while from 1790 to 1970 it was only 68 years. An increased life span, more law clerks, and a smaller caseload has contributed to this increase, according to Calabresi.
Professor Calabresi points to a number of problems associated with this trend. Longer terms reduce the efficacy of the appointment process as a political check on the court and ensure a more contentious and political nomination process, as longer-serving Justices increase the stakes for both political parties. In addition, Calabresi argues that “mental decrepitude” affects older justices and they become less rigorously engaged in the job. Professor Elhauge seemed to echo this view, recounting that Justice Brennan, for whom he clerked, “was a shadow of his former self” as an octogenarian. On a more ideological note, Calabresi asserted the longer a justice sits on the court, the more likely they are to “drift to the left” as they become “enmeshed in the elite culture of Washington, D.C.”
Of course, the Constitution mandates life tenure for Supreme Court Justices, which many of the Framers believed necessary to ensure judicial independence. None of the states, however, save Rhode Island, allow life tenure for judges. Nevertheless, Calabresi’s proposal would attempt to ensure judicial independence by providing lifetime salary and the ability to serve on lower courts after the 18-year term on the high court expires (somewhat similar to the early American practice of “circuit riding”).
In response to those who might view Calabresi’s proposal as somewhat radical, he insists that it is “fundamentally conservative,” as it will reinstate the tradition which prevailed until 1970.
Professor Farnsworth, in a lively response, insisted that originalists like Calabresi are really concerned that longer terms mean that it takes longer to overturn what they view as bad decisions. Farnsworth also rejected the notion that longer terms create a more contentious appointment process, asserting that the hearings for Chief Justice John Roberts did not seem bitter at all. Indeed, the only time the process becomes extremely bitter is when “ideologically extreme judges” like Robert Bork or Clarence Thomas are nominated, according to Farnsworth. Thus, while the Bork nomination was extremely contentious, it was not because he would be serving for life, but because he was out of the mainstream.
Professor Farnsworth also took issue with Calabresi’s proposal that a Supreme Court vacancy occur every two years. Farnsworth believes that such a system would create an even more political appointment process, as interest groups would know exactly when a vacancy would arise and have more time to prepare. In addition, Farnsworth worries that the Senate’s role would diminish under Calabresi’s proposal, as appointments to the court would become mere “spoils of victory.”
Finally, Farnsworth disagreed that mental decrepitude affects longer-serving justices, and even if it did that was an acceptable cost of life tenure. Instances of a decrease in mental ability, he argued, are very rare and mitigated by the use of law clerks (which Calabresi responded was no solution to the problem). Farnsworth pointed out that the early opinions of Justice Thurgood Marshall are no different than his later opinions, when critics claimed his mind was failing him. Nor does Farnsworth agree that justices become bored with the job, pointing to the late Chief Justice William Rehnquist and Justices John Paul Stevens and Antonin Scalia as examples of justices who serve many years and still seem to enjoy the work.
While both Calabresi and Farnsworth seemed to agree that a constitutional amendment was not likely in the near future, the debate highlighted important issues surrounding the nation’s highest court and provided students with an interesting and entertaining evening.