Abstract

This Article presents a new analysis of life tenure for Supreme Court Justices, treating it as a regulatory regime that can be unpacked into a number of components: (a) Justices can serve into old age; (b) they can serve for long periods of time; (c) they serve terms of varying lengths; (d) chances to appoint new Justices arise unpredictably; (e) chances to appoint new Justices arise irregularly; and (f) the Justices often decide for themselves when to leave the Court and thus who will pick their replacements. Breaking down life tenure in this way makes it easier to understand the pros and cons of proposals to reform it. Age limits would target mostly (a), would have no effect on (c) or (e), and would work only partial or uncertain changes in the other respects just listed. Proposals for fixed terms have the potential to eliminate all of them. The Article concludes that age limits are worth serious consideration, but that most of the additional benefits provided by the fixed terms that commentators often have urged would be illusory or likely to be offset by new problems they would cause, whether the new regime is adopted by constitutional amendment or by statute.

The Article argues more particularly that the length of a Justice’s tenure determines how often vacancies arise and thus how quickly electoral majorities can remake the Court and force tectonic changes in the law. From this perspective the right length of judicial terms depends on how much we trust judgments by majorities over longer and shorter time periods; life tenure reflects a high and salutary distrust of short-term judgments. The framework set out above also leads to various other conclusions. One is that in a regime of life tenure the Senate should play an active role in screening nominees to offset the arbitrary and lumpy way that nominating chances are distributed to presidents. Another is that life tenure makes age more important than the other ways in which most nominees to the Court differ from their likely alternatives.

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Ward Farnsworth Contact Information

wf@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-4008

Presentation and Publication Information:

Social Science Research Network: http://ssrn.com/abstract=639541

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