Constitutional Law

Term Limits v. Life Tenure, __ U.S. __ (2009).

A debate as old as the Federalist Papers is being rekindled this week. The National Law Journal reports that 33 law professors, former state supreme court justices and practitioners are recommending reforms to the life tenure currently extended to U.S. Supreme Court Justices.

The reforms are not unanimously endorsed, but the group agrees that “the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, ‘You’re part of an enterprise that we have some power over,’” said signatory and Duke Law Prof. Paul Carrington.

The suggested reforms were sent to the Attorney General and heads of the House and Senate judiciary committees. Of those suggestions, the most popular among signatories was the proposal to hold regular, biennial appointments of new justices to the high court. The group’s motivation was to assure a timely rotation within the membership of the court.

A similar position was expounded in Monday’s Guardian by University of Texas Prof. Sandy Levinson, another of the signatories to the reform recommendations. Levinson wrote, “Endless life tenure has almost literally nothing to be said for it. Any reasonable desire to maintain judicial independence could easily be achieved by, for example, appointing justices for non-renewable 18-year terms.” Levinson cited the case of Justice William Douglas, who would not immediately resign after suffering a debilitating stroke, as exemplary of the problems encountered when judges are extended life tenure. However, Levinson did note that the remaining eight justices on the court at that time maneuvered to nullify Douglas’s vote in situations where it would have been decisive.

As to the prospect of legislators heeding the proposals, Carrington had this to say: “Given the history of it, nothing may happen, but, gosh darn it, they do need to think about it.”

The full text of the recommendations is available here, courtesy of Prof. Carrington.

Full post as published by ACS Blog on February 12, 2009 (boomark / email).