WASHINGTON – Justice Antonin Scalia’s sudden death a month before his 80th birthday and the potential impasse over replacing him is giving new impetus to an old idea: limiting the service of Supreme Court justices.
Scalia had been on the court for nearly 30 years, longer than any of the current justices and all but 14 of the 112 men and women who have served on the court.
“I think 30 years on the court is too long for anyone – liberal or conservative. That is just too much power in one person’s hands for too long a period,” said Erwin Chemerinsky, a liberal legal scholar and dean of the law school at the University of California at Irvine.
The Constitution says federal judges “shall hold their offices during good behaviour,” which means essentially as long as they wish.
The most talked-about idea has support among both liberals and conservatives. A single 18-year-term would replace lifetime tenure. Going forward, presidents would appoint a justice every two years, ensuring both continuity on the court and two picks for each presidential term. On the right, former Texas Gov. Rick Perry advanced a similar idea during his 2012 Republican campaign for president.
The Supreme Court already had been a topic of conversation in the presidential race. Scalia’s death has brought into stark relief how Supreme Court appointments can be a president’s most lasting legacy.
Even with Scalia’s death, there remain three justices who are at least 77 years old and have served more than 20 years. Justice Ruth Bader Ginsburg’s 83rd birthday is March 15. Justice Anthony Kennedy turns 80 on July 23. Justice Stephen Breyer will be 78 on Aug. 15.
Even with improved medical care and longer life expectancies, health crises on the court are as inevitable as they are in society at large, said historian David Garrow.
“One thing we can say in the present day is the fact that we have a court that is this elderly at the moment and there aren’t any signs of decrepitude ... is like the Florida Gulf Coast dodging a hurricane,” Garrow said.
Justice William Douglas’ declining health provided the clearest example in recent decades of what can ensue when a debilitated justice remains on the bench. The 76-year-old Douglas suffered a stroke on Dec. 31, 1974, but did not retire until the following November.
Douglas tried to participate in the court’s work but had trouble staying awake, even during public court sessions. Court arguments were interrupted when the justice, who used a wheelchair, had to leave the bench. Still, it took many months before Douglas agreed to retire.
He was not alone in staying on the court too long, Garrow said. Justices Hugo Black, Thurgood Marshall and Lewis Powell all suffered significant declines in what Garrow called their mental energy and should have left the court earlier than they did, he said.
The last time the court had as many as three justices in their 80s was in 1990, with Justices William Brennan, Harry Blackmun and Marshall. Brennan retired that year, and the other two also left the bench over the next four years, along with Byron White, though he was a relatively youthful 76 when he retired.
Knowing that their picks may outlive them by decades, presidents tend to choose younger men and women for the job. President Ronald Reagan named the 50-year-old Scalia to the court in 1986. Douglas, the longest serving justice of them all, was appointed by Franklin Delano Roosevelt before the start of World War II and served until 1975. He took his seat at age 40.
Other than Ginsburg, who was 60 when she took her seat in 1993, no one older than 55 has joined the court since 1972.
“If you are 62 years old, no one is going to appoint you under the current rules,” said University of Chicago professor Harold Pollack. Another point in favor of term limits, Pollack said, is that judges educated in the 1940s and 1950s are making decisions about same-sex marriage and technology. “They’re from a totally different time. That’s not a wise institutional design,” he said.
Life tenure also undercuts the importance of elections, George Washington University law professor and former Kennedy clerk Orin Kerr wrote on the Volokh Conspiracy blog.
Kerr pointed to President Jimmy Carter, who made no Supreme Court appointments in four years in the White House. Reagan made four in the following eight years.
Staggered appointments of Supreme Court justices would more closely align the composition of the court with the prevailing political majority, Kerr said. One hazard of such a system, though, is that a two-term president could name a majority of the court if a justice appointed by the previous president were to die or be forced to leave the court early.
Yet Scalia’s clear and consistent articulation of a method of interpreting laws and the Constitution over many decades underscores the value of lifetime appointments, said Roy Englert, a Washington lawyer who has argued 20 cases at the high court.
“Scalia was a brilliant thought leader on the court and within the country up until the day he died, literally,” Englert said.
Past efforts to drum up support for term limits have failed, mainly because most scholars believe the Constitution would have to be changed. It takes two-thirds of the House and Senate to propose an amendment, and 38 of the 50 states to ratify it.
Scalia himself said in recent years that one thing he wished the framers of the Constitution had done differently was to make the document easier to amend.