Legal News

Reexamining ?Life Tenure? for Supreme Court Justices

By Ashby Jones

We’re guessing that Duke law professor Paul Carrington doesn’t currently have any Supreme Court arguments on his calendar.

Carrington (click here and here), who in the past has been critical of the Court’s development over the last half-century, goes at it today in this NYT opinion piece.

Carrington’s main point: Supreme Court justices often stay on the bench for too long. Yes, writes Carrington, life tenure has been given to them by the Constitution, but that life tenure is qualified. Federal judges, both of the Supreme Court and of lower courts, can retain their offices as long as they maintain "good behavior,” something Carrington seems to think is too often overlooked. Carrington doesn’t call out any of the current justices — the eldest of whom, John Paul Stevens, will next week celebrate his 89th birthday — but does call out two from recent memory. Carrington writes: “some justices, even those seriously unfit, have held on to their awesome power and status long beyond what was reasonable. William Rehnquist, who continued to work on cases in 2005 even as he was dying of cancer, is the most recent example. The celebrated Thurgood Marshall, who was 82 when he retired in 1991, was another.”

Carrington doesn’t just stick it to Marshall and Rehnquist. His real complaint is that the Court has developed too much autonomy over the years:

One reason justices are able to cling to power is that they have made their jobs relatively easy. For more than 80 years, they have been empowered to choose the cases they decide, and to leave many matters to lower courts without close oversight. . . . The justices are now down to about 75 cases a year. And the vital task of selecting those few cases is substantially delegated to young law clerks who also help write the justices' opinions.

Carrington’s solution? Develop something akin to the Circuit Judicial Councils, which look into grievances against the conduct of federal district court and appellate judges. “A council may censure a judge either privately or by a public pronouncement, or request his retirement. If a judge rejects a council's advice, it could issue a statement to be considered by the House of Representatives that might initiate an impeachment proceeding.” Such a process, concludes Carrington. “would serve to remind our mortal justices that they have a right to serve during good behavior, not for life.”

Full post as published by Law Blog - WSJ.com on April 13, 2009 (boomark / email).