Sunday, February 21, 2016

A thought for Sunday: term limits for Supreme Court Justices

 - by New Deal democrat

The death of Antonin Scalia, who was an Associate Supreme Court Justice for 30 years, has put a spotlight on the issue of term limits for Justices.

I have seen several analyses comparing the recent past with the mid-20th Century, but a more complete picture emerges when we compare the last 50 or 60 years with the 19th Century.

Between 1789 and 1899, 58 Justices were appointed to the Supreme Court.  The median time served by a Justice was 14 years.  Let's go further and break their terms into quartiles, for shortest to longest:

1st -  0 7 years
2nd - 8-14 years
3rd -  15 - 24 years
4th - 25+ years

The median age at which Justices retired or died, ending their terms, was 68. Eleven served to age 75 or older, and 6 served into their 80s! 

Now let's compare that with the last 60+ years beginning with Eisenhower in 1953, excluding current Justices (who of course may continue to serve for many years to come). The median time served by a Justice has been 20 years.  Here are the quartiles:

1st -  0 -14 years
2nd - 14 - 18 years
3rd - 22-24 years
4th -  25+ years

The median age at which Justices have retired or died has been 78.

Of note, 1 currently siting Justice, Kennedy, has already been on the bench for more than 25 years.  Thomas will reach the 25 year mark later this year.  Ginzburg has been on the bench for 23 years.  Should all three still be serving then, here's what the quartiles will look like:

1st -  0 - 15 years.
2nd - 16 - 23 years
3rd  -  24 - 29 years
4th -  30+ years

The median age of the 8 current sitting Justices is 67. 

I was surprised at how many Justices in the 19th Century served 25 years or more, and their longevity.  There seems to be something about being a Solomon for a living that keeps the blood flowing, even back then!

But in general, the longevity of the Justices has increased by about 10 years, from 68 to 78 at the time of their resignations or death; and their longevity on the bench has similarly increased, from 14 years to nearly 25, and potentially over 30 years if the 3 most senior Justices are still serving in 2 years.

In my opinion, a Court dominated by septuagenarians, who probably formed their essential ideologies in their late teens over half a century before, and who have been on the bench 25 years or more constitutes rule by a dead hand, whether they be liberal, conservative, or moderate. 

A Constitutional amendment setting 18 year terms for the 9 Supreme Court Justices has been proposed, with terms staggered to begin/end in the 1st and 3rd  year of each Presidential term.   This sounds eminently reasonable to me.  After that, if they wish  to continue to serve, I see no reason why they couldn't become "Justices Emeritus" assigned to the Federal Court of Appeals for the state in which they reside.