The news that Justice Ruth Bader Ginsburg had been diagnosed with pancreatic cancer raced through legal and judicial circles in a cyber-instant on February 5. With Chief Justice William H. Rehnquist’s death from thyroid cancer in September 2005 still fresh in mind, Ginsburg’s medical bulletin prompted immediate research on survival rates for pancreatic cancer and ghoulish speculation about her likely successor.
The overall statistics are grim: the one-year survival rate is 20 percent; for five years, only 4 percent. But a month later, Ginsburg’s prognosis appears more favorable than the norm. The 1-centimeter lesion originally detected in a CAT scan in late January turned out to be benign. A smaller tumor found during surgery was malignant, but it was removed. Surgeons found no evidence that cancer had spread to other parts of the body.
Ginsburg survived colon cancer 10 years ago without missing a single argument. She was back on the bench in late February, her performance seemingly unaffected. With the favorable news, however, comes the reminder that life tenure for Supreme Court justices means that turnover comes not at any regular or any logical intervals, but according to medical vicissitudes or personal predilections of the individual justices.
This is the law of succession in hereditary monarchies and personal dictatorships, but not in constitutional republics. Of course, the Constitution provides life tenure for federal judges and for good reason. Life tenure is a good thing for ensuring the independence of the federal judiciary. But too much of a good thing may not be so good. And there are good arguments that given the unique role that Supreme Court justices have come to play in the American system of government, life tenure for The Nine is just that: too much of a good thing.
One statistic frames the issue: recent justices have been serving longer on average than justices did in most of U.S. history. As pointed out by eminent legal scholars Paul Carrington at Duke and Roger Cramton at Cornell, the average tenure of justices during the court’s first 180 years from 1789 through 1970 was about 14 years; for justices who have retired since 1970, it is around 26 years.
Two factors contribute to the trend. Justices appear to be living longer. A fair number of early justices lived into their 70s, but recent justices are staying even longer: Lewis F. Powell Jr. retired three months before his 80th birthday; William J. Brennan Jr. and Thurgood Marshall retired at 83, Harry A. Blackmun at 85. And Rehnquist was one month shy of 81 when he died.
Presidents also seem to be appointing somewhat younger justices. Consider Byron R. White (44 when appointed), Rehnquist (47), and Clarence Thomas (43). Not to mention John G. Roberts Jr., appointed at age 50 as the youngest chief justice since John Marshall was appointed at age 45.
So justices start earlier and live longer. And with few exceptions they stay on the court as long as possible. This conclusion emerges from the recent paper, “Modern Departures From the Supreme Court,” by Santa Clara University professors Terri Peretti and Alan Rozzi. They set out to examine whether justices time retirements to allow an ideologically compatible president to appoint an ideologically compatible successor. They conclude that so-called “strategic retirements” are the exception, that justices in fact continue to serve because they do not want to lose their position or influence.
There are exceptions: Potter Stewart in good health made way for President Reagan to appoint a Republican; White in good health gave President Clinton the chance to name a Democrat. And occasionally justices’ efforts to time their departures fail. Earl Warren tried to give President Johnson the chance to name his successor, but the Senate balked. William O. Douglas wanted to stay long enough for a Democrat to name his successor, but senility intervened.
Carrington and Cramton have helped assemble a diverse group of legal academics liberals and conservatives alike to argue that these statistics demonstrate a problem of institutional unaccountability. With long tenure and infrequent turnover, the court becomes out of touch not as suggested by the crude attacks on “unelected judges,” but isolated to some extent and deprived of the benefit of “new blood” at regular intervals.
Moreover, with no regular turnover, each nomination and each confirmation assumes an outsized political significance. Every president sees each nomination as the chance for a long-lasting legacy; likewise, interest groups and senators in both parties see each confirmation as a battle for lasting control of the court. And this is true whether or not justices deliberately play into the political gamesmanship.
The solution proposed by the Carrington-Crampton coalition is a hybrid form of term limits for the justices: 18 years of active service on the court, followed by life tenure as a senior justice; senior justices could serve on trial or appellate courts or even on the Supreme Court itself if a regular justice is recused. Judicial independence is preserved, but regular turnover a new justice every two years provided.
The obstacles to the proposal are foreboding: inertia, tradition, and the absence of any party or interest group with strong motivation to push it. Perhaps as the old joke goes you can’t get there from here. But the logic is strong: strong enough for Congress to take a look.