Stripping life tenure from Supreme Court Justices would "fix" a nonexistent problem and threaten America's independent judiciary.
There is no evidence that Justices need to be forced to retire. Many of our greatest Justices, including Oliver Wendell Holmes and William Brennan, have served honorably on the Court well into old age. The argument that old people make bad judges smacks of age discrimination.
Since 1787, the Constitution has granted Supreme Court Justices and most federal judges the right to hold their offices until they die or retire. It is one of the most important guarantees in the Constitution of an independent judiciary.
It's life tenure that allows judges to interpret the law free from the day-to-day political pressures that the executive and legislative branches of government face. Those pressures mean that Congress and the President sometimes fail to see, or choose to ignore, the bigger, longer-term picture in issues ranging from civil rights to presidential authority.
Furthermore, abolishing life tenure for Supreme Court Justices would require a constitutional amendment. This would be a time-consuming and costly process that would distract us from the many real problems facing our society. In addition, such an amendment would set a dangerous precedent for more serious threats to our independent judiciary, such as giving state and local judges shorter terms of office or making it easier for politicians to fire them.
When it comes to the life tenure of Supreme Court Justices, our Constitution is working just fine, and it would be foolish to tamper with it.
Neil M. Richards
Professor of Law, Washington University, St. Louis, Missouri
We often say Supreme Court Justices have "life tenure," but the Constitution actually says they can hold their offices as long as they maintain "good behavior."
This language suggests that Justices have a duty to retire when they are no longer fit to work full-time. That duty is a rule in some countries: Britain, for instance, forces judges to retire at 70.
Having long observed (and experienced) aging, I question the wisdom of letting people in their 70s and 80s continue to exercise such great power: Supreme Court Justices have more influence on our society than almost anyone else. And they often cling to their seats until they die.
Some Justices who were seriously unfit have held onto their awesome power far too long. Former Chief Justice William Rehnquist continued to decide key cases in 2005 as he was in the hospital dying of cancer; Thurgood Marshall was 82 and in very poor health when he retired in 1991.
Two factors have enabled Justices to remain on the bench longer: a smaller caseload and increased reliance on young law clerks. Since 1925, the Justices have had the authority to decide which cases they will hear. The Court once accepted close to 300 cases a year; now it hears about 75. Young law clerks, usually fresh out of law school, help write the Justices' opinions and have become increasingly involved in the crucial process of deciding which cases make it to the Supreme Court.
Congress should address this problem. We already have a process by which disabled federal judges can be placed on senior status, a form of retirement. It is time to extend that procedure to Supreme Court Justices.
Professor of Law, Duke University, Durham, North Carolina