John Roberts was in elementary school when the Supreme Court ruled in 1965 that patent holders cannot collect royalties on their inventions after their patents expire.
As chief justice 50 years later, Roberts appears to think the ruling is wrong. “The economists are almost unanimous that this is a very bad rule,” Roberts remarked during oral arguments late last month [March 31] in an appeal aimed at overruling the decision (Kimble v. Marvel Enterprises, Inc.).
The Obama administration urged the justices to keep the ruling on the books, but acknowledged its bad reputation among economists. “The 1960s are often associated with loose economic analysis,” deputy solicitor general Malcolm Stewart conceded.
Times change, and conventional wisdom changes. But these days the membership of the Supreme Court changes less and less frequently. Justices are younger when appointed, they live longer, and they stay on the bench for the most part until age or health forces them to leave. Just ask Ruth Bader Ginsburg about retirement.
The average tenure of justices from 1789 to 1970 was about 14 years, according to statistics cited a few years ago by law professors Paul Carrington and Roger Cramton. The average tenure of the justices who have left since 1970 is 26 years, nearly twice as long. Five of the current justices have served together for 20 years.
The result is an increasing multigenerational gap between the justices and the public. Take Roberts as an example. He was appointed at age 50 as the youngest chief justice since John Marshall was named to the post two centuries earlier at age 45.
The baby-boomer Roberts began his legal career in the 1980s just as Gen Xers were coming of age. He went on to the Supreme Court in 2005 as the first of the Millennials were graduating from college and professional schools. Ten years later, Roberts appears to be in good health. If he stays healthy, he could easily serve into his late 70s or early 80s, just as his three predecessors did.
By 2030, the first of the Millennials will be getting their AARP cards. Their children, the Post-Millennials, will be starting to join the workforce after having been educated entirely in the Internet era.
The United States will be changed in ways that few of us can foresee today. But Roberts will have been living in a judicial bubble for a quarter-century. He will have kept up by reading newspapers and maybe even law journal articles. But to some extent he will remain a product of his formative years: the turbulence of the 1960s and ’70s and the conservative pushback of the ’80s.
The U.S. Supreme Court is the only constitutional court in the world with lifetime-tenured justices. The Framers saw lifetime tenure as a necessary safeguard for judicial independence, but they wrote Article III when the average life expectancy was much shorter than it is today.
Lifetime tenure today results in a court that is less and less in touch with the public not because the justices are unelected, but because they formed their world views in earlier, much different times. Antonin Scalia’s views on gay rights were formed years before Stonewall; Ginsburg inevitably views sex discrimination cases through the lens of the difficulties she faced from the unwelcoming legal profession of the 1950s and ’60s.
An ideologically diverse assortment of law professors has called for several years for modifying the tenure rule by limiting justices to 18 years of active service on the court followed by “senior status” thereafter. The senior justices could serve on lower federal courts or on the Supreme Court itself in case one of the nine was recused. Within the past year, the proposal has picked up support from, among others, GOP presidential wannabes Rick Perry and Mike Huckabee.
Every new justice creates a new court, Byron White famously remarked. With four new justices in the past decade, the court is different today than when Chief Justice William H. Rehnquist presided over 11 years of no vacancies. Besides Roberts, the other new justices Samuel A. Alito Jr., Sonia Sotomayor, and Elena Kagan have enlivened the oral arguments and occasionally mixed up the voting patterns.
The 18-year rule would bring new blood onto the court at regular intervals. It would also give the political branches, the president and the Senate, a chance to recalibrate on a fixed schedule. Confirmation battles might de-escalate somewhat if president and Senate both know that another vacancy will arise sooner rather than later.
Some experts think Congress could enact this change by statute; others think it would require a constitutional amendment. Either way, it’s a long shot.
Neither political party will see the idea as particularly advantageous. If one party adopts the proposal, the other might reflexively oppose any change. But if it’s time to rethink the economic views of the 1960s, surely it might also be time to take a fresh look at the 225-year-old tenure rule in the light of changing times and changed circumstances.