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Life tenure

By Jack M. Balkin

A brief comment on Mary Dudziak's interesting post: I spent an hour earlier today talking to a group of judges visiting UT about the proposal by Paul Carrington and others to engage in the de facto limitation of life tenure of Supreme Court justices, discussed earlier by Jack. I, of course, heartily support the proposal. I think we pay a high cost, without receiving adequate benefits in return, from the "full-life" (i.e., until death do we necessarily part) tenure enjoyed by members of the Supreme Court.

But doesn't any serious discussion of the crisis facing contemporary (young) academics have to address the fact that the only other group with federal-judge-type life tenure is academics? I am well aware, through having served on some prize selection committees over the past several years, of extraordinarily good books written by young academics at what to most of us would count as very obscure colleges and universities. They are blocked from moving up because few universities have vacancies, and the situation is surely not going to get any better as academics my age (67) look at their 401(k)s and come to the altogether sensible conclusion that retirement at 70 or even 72 no longer looks like such a great idea.

I have no idea what the "solution" to this problem is. Fortunately, the UT Law School is still hiring people, so I don't have to feel, when I look at myself in the mirror, that I'm taking up the slot that could go to someone younger (and cheaper) who is doing perhaps better work. (I hope it's only "perhaps"!). I suspect strongly that I could not take similar satisfaction were my appointment in a regular academic department at UT or anywhere else.

Judges are in the odd position of basically working for free once they meet the "rule of 80" (years of service+actual age), since they could retire at full salary. I presume they remain on the bench because it's by and large interesting work, and Supreme Court justices especially enjoy being fawned over and getting to weigh in on some important issues of public policy. Many academics might choose to keep teaching because they truly enjoy it, but, unlike federal judges, almost all academics also have an increasingly strong financial incentive to hold on to their jobs (and linked medical benefits).

Whatever else one thinks about the efficacy of legal rules, there can be no doubt that the Pepper Amendment, which basically invalidated compulsory retirement laws, has had massive impact on at least some institutions, including the academy.

Full post as published by Balkinization on March 06, 2009 (boomark / email).