The Problem of Supreme Court Justices' Remaining on the Bench Too Long: Although It's a Genuine Concern, Recently-Suggested Reforms Are More Problematic Than the Status Quo
	By EDWARD LAZARUS
	Tuesday, April 14, 2009

Sometimes a critic may raise important questions even when his or her reasoning is meaningfully wrong. That was the case this week when Professor Paul Carrington, a respected member of the Duke Law School faculty, launched a broadside against Supreme Court Justices who take their right to "life tenure" too literally and hang on to their jobs until near-death, despite significantly diminished capabilities.

Carrington's basic thesis is that the Justices enjoy the luxury to overstay their welcome because the job of being a Justice has become relatively easy (after all, they now only decide about 75 cases each term), and because they have delegated to law clerks much of the case-selection process. According to Carrington, there ought to be a way to force a Justice into retirement by referring that Justice to a council on judicial ethics, or through impeachment if the council recommends retirement but the Justice still refuses to leave.

Carrington is certainly onto something. There is a tendency for Justices to stay on the bench even when they are no longer operating at the level one would rightfully expect of a Supreme Court Justice. Carrington cites the examples of Chief Justice William Rehnquist, who did not retire even when he was obviously debilitated by the cancer than ultimately claimed his life, and Justice Thurgood Marshall, whose heart was not much in the job during his last years on the Court. Other examples that were not mentioned by Carrington include, most obviously, Justice William O. Douglas. In the mid-1970s, Douglas was so incapacitated that the other Justices secretly agreed to disregard his votes in cases where the Court was otherwise divided 4-4. Yet Douglas refused to step down.

But Carrington is almost certainly wrong about what causes the problem of Justices' refusing to retire. Moreover, by limiting his focus to Justices who simply become too old or infirm to handle the job, he understates the potential problems posed by life tenure. And Carrington's suggested reform would surely cause as many -- or more -- problems than it would fix.

The Real Reasons Why Justices Linger on the Court Too Long, and the Real Problems This Situation Creates

To begin, the true reason that Justices can hang on too long isn't much related to the issue of workload. Take Carrington's own example, Thurgood Marshall. During Marshall's last years on the Court, the Justices were reviewing roughly twice as many cases as they review now – a crushing load – yet Marshall persevered. During Douglas's incapacity, the Court was also much busier than it is today. And, as for delegating case selection to law clerks, although some particulars have changed, the Justices have long relied on their clerks to do most of the heavy lifting in this area. Furthermore, although the Court decides many fewer cases today than it did, say, twenty years ago, deciding 75 cases really well is still a considerable challenge.

The real problem, then, is not a recent decrease in workload, but rather a very human tendency for people to hold on to positions of great authority for as long as they possibly can. This natural tendency is perhaps abetted by the structure of the Court as an institution: It allows Justices – young or old, vibrant or infirm – to work pretty much as little, or as much, as they choose. And the effect of that feature of the Court is reinforced by the historical fact that Justices in retirement have often declined quickly in health, or regretted their decision – which does not exactly encourage others to follow suit. But this picture is different from the one Carrington paints.

Nor is Carrington right to focus on age and infirmity. Sure, there are a few justices who have stayed on for longer than they should have. But this unfortunate circumstance is relatively rare. The truth is that there have been some subpar justices who have been in the prime of life. And there have been some Justices who have been terrific despite being quite old, like Justice John Paul Stevens, now coming into his prime at 89.

The more pervasive problem arises from the fact that it has become routine for justices to serve more than 20, or even 30, years on the Court and the fact that they have complete discretion to decide for themselves when to retire. This situation creates two related problems.

First, it allows Justices to make their retirement decisions based on political or partisan factors, by waiting until a like-minded President wins election and can nominate a successor. This practice has become fairly routine (whether it is acknowledged or not), and it has several perverse effects. The ability of a justice to choose his or her own retirement date allows an unelected justice to create his or her own legacy at the Court, and to extend indirectly the political legacy of the President who appointed him or her. In addition, it creates a relatively artificial opportunity for the sitting President to create a legacy through judicial appointment.

Second, and more generally, the habit of having justices stay on for decade after decade may set the wrong balance between past and present in the interpretation of our basic laws. If you believe, as I do, that judicial interpretation is affected by a justice's worldview, and if you believe, as I do, that worldview is affected by certain formative life experiences (upbringing, educational background, the temper of the times), then it follows that long judicial tenures have a propensity for entrenching older and potentially outdated worldviews on the Court and in our law.

This is a balancing act, of course. New is not necessarily better than old. But each generation is shaped by different forces than the one that came before it – and an excess of older justices has a skewing effect, depriving the Court and the country of new and perhaps usefully fresher perspectives.

Carrington's Solution Does Little to Address the True Problem, and Would Introduce Its Own Difficulties

Carrington's proposal that we resort to an ethics council, and, if the council's recommendation for retirement is not followed, to the potential impeachment of justices, does little to address these issues. And while the idea has the virtue of not requiring a constitutional amendment to affect life tenure, it is fraught with other practical difficulties. We have a hard enough time with the hyper-politicization of the constitutionally-mandated process of nominating and confirming justices. Imagine the bitterness and partisan rancor that would accompany Carrington's approach.

For better or for worse, we are probably stuck with the current system. One idea I have endorsed (and I believe it is one that Carrington has suggested in the past as well) is a system of fixed 18-year terms for the Justices, staggered so that one Justice would retire every two years. This would prevent Justices from timing retirements for political purposes. (The replacement for a Justice retiring early would only serve out the remainder of the retiree's fixed term). And it would create a nice balance between experience and fresh thinking on the Court.

But it's impossible to imagine the passage of a constitutional amendment along these lines. And so we are left to hope that, over time, the Justices themselves will consider the problems that have been raised – and consider solving them for us.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.