Do High Court Justices Need Term Limits?
SCOTT SIMON, host:
This is WEEKEND EDITION from NPR News. I'm Scott Simon.
Coming up, why the best-run car company in the world is not American and not unionized, but first, one of the refrains we keep hearing during the confirmation process for any Supreme Court justice is that the president and Senate have to be careful, it's an appointment for life. The nation's first 10 justices spent on average fewer than eight years on the Supreme Court. Only two of them lived past the age of 70, but over time, justices have tended to live and work longer and some legal experts are now suggesting that Supreme Court justices receive fixed terms on the bench or mandatory retirement age. Such a change would likely require a constitutional amendment. Stuart Taylor is a columnist for National Journal and Legal Affairs; he joins us in our studio.
Stuart, thanks very much for being with us.
Mr. STUART TAYLOR (Columnist, National Journal and Legal Affairs): Nice to be with you.
SIMON: Americans are working longer, living longer. George Burns was telling jokes until he was 100. What's wrong with Supreme Court justices living and working longer?
Mr. TAYLOR: Well, there's a list of things that are problems. They can become basically incompetent in office, intellectual autopilot, complacency, power corrupts, less democratic accountability because the only time the democratic process gets to weigh in on these people is when they're appointed. Life tenure means fewer appointments. Randomness--Jimmy Carter gets zero appointees, Richard Nixon gets four; just chance and also strategic retirement incentives. If the justice doesn't like the president and wants to hold on until the next president can replace him, you have that, and I think less productivity. At least that's what we've seen in the last 20 years from this court which has shrunk its docket from 150 decisions a year to about half that and delegated more and more of its work to young law clerks.
SIMON: Without trying to necessarily pick apart any of the arguments that you state in favor of a term limit or mandatory retirement age, let me tell you what has always been the overwhelming argument for lifetime appointments, which is that it gives the Supreme Court justice both freedom and fearlessness. They don't have to toady to anybody's opinion, least of all the president who appointed them. They don't have to fear for anybody's reaction over any decision that they give, least of all any president who succeeds the one who appointed them.
Mr. TAYLOR: That's exactly right. Now those who object to this proposal--and there are plenty--have not emphasized that one. And the reason they haven't is that the major proposal that's being bruited about would give them 18-year terms and they would not be renewable and they would remain in the judiciary if they wanted, just not on the Supreme Court. Now I think most people figure 18 years is plenty.
SIMON: When you talk about some of the proposals being bruited about, who is authoring or bruiting about these proposals?
Mr. TAYLOR: So far it's mainly law professors, not politicians. The leaders in kind of the informal group are moderate Republican Roger Cramton, from Cornell Law School, a moderate Democrat, Paul Carrington, from Duke Law School, but others include--there are about 45, all rather prominent professors who have signed on to one variant or another of term limits. They include liberals like Bruce Ackerman at Yale, Frank Michelman at Harvard, and they include conservatives like Richard Epstein at Chicago and Lino Graglia at Texas, Steve Calabresi at Northwestern, although Calabresi, I should add, who's one of the founders of the now-famous Federalist Society, thinks that it's a good idea but it require a constitutional amendment that you couldn't just have Congress do it. And there's a lot of people who are in that camp, too.
SIMON: Does it have any chance whatsoever of passing?
Mr. TAYLOR: Oh, you're such a spoilsport. Now you're asking me to judge the political process? Well, the answer is that the proponents of this talked to some congressional staff. They haven't really gotten to talking to members of Congress yet, and so it's a long shot, but the one slight hope it has for getting traction is that more and more people are unhappy with a lot of things about the Supreme Court and about the confirmation process. And a lot of that is ideological. We just don't like the liberals. We just don't like conservatives. But there are some things that everybody ought to be able to agree on, and maybe having John Roberts, who's a wonderful chief justice, I think potentially as far as I'm concerned, maybe 20 years of him would be enough. Do we really want 40 years of John Roberts as chief justice or more realistically 30, 35 years? That's an awful--I mean, that's longer than most medieval monarchs serve.
SIMON: Stuart, I hope it's not another 18 years before you come back.
Mr. TAYLOR: Hope not. Thank you.
SIMON: Nice talking to you.
Stuart Taylor, columnist for National Journal and Legal Times.