Why are U.S. Supreme Court justices appointed for life?
U.S. Supreme Court justices receive lifetime appointments to the bench, but many wonder if indefinite terms do more harm to our legal system than good.
- With a second nomination to the Supreme Court, President Trump has the ability to alter the political leanings of the country's highest court for decades.
- The Founding Fathers gave justices and other federal judges a lifetime appointment to prevent them from being influenced by other branches of government.
- Today, many argue that federal judges should be subject to term limits as modern politics and life expectancy have outpaced the Founders' original vision.
With the retirement of Supreme Court Justice Anthony Kennedy, President Donald Trump scored his second nomination to the United States' highest court. During his term, Trump could potentially receive a third and fourth empty seat on the bench.
Since Supreme Court justices serve for life, such a turn of events would tilt the court toward conservative rulings for decades. Dreading such a future, Democrats have unleashed a salvo of criticisms at Trump's current SCOTUS nominee, Brett Kavanaugh. They have also called for reforms to set term limits for federal judges.
On his show Last Week Tonight, liberal-leaning comedian John Oliver argued that term limits are essential for democracy, as lifetime appointments come with a bevy of drawbacks. But it wasn't long ago that Republicans could be heard issuing similar clarion calls.
"I just think that people—whether they're in the legislative, executive, or judicial branch—shouldn't see their appointment to an office as permanent," Mike Huckabee told CNN during his 2015 run for the Republican nomination. "It would be that they have no accountability whatsoever."
If there is bipartisan agreement that term limits can be problematic, then why do Supreme Court justices have a lifetime appointment?
The why of lifetime appointments
(Photo by Tetra Images/Getty Images)
A close up of the U.S. Constitution. SCOTUS justices are granted a lifetime appointment under Article III, Section 1.
The U.S. Constitution doesn't specifically grant Supreme Court justices a lifetime appointment. Instead, Article III, Section 1, states that federal judges "shall hold their Offices during good Behavior" and… that's it. As long as federal judges don't commit a crime — and remember their pleases and thank yous — they keep their seat.
The phrase "during good Behavior" translates to a lifetime appointment because the Founders set no specific term or age limit for service. This means that the only actions that can remove a federal judge are death, resignation, or impeachment by Congress.
Most federal judges exit by way of death or resignation, with impeachment coming into play sparingly. Only 15 federal judges in U.S. history have ever been impeached and never a Supreme Court justice. Of the 113 justices to serve, only two have been faced with the threat of impeachment.
In 1804, the House impeached Supreme Court Justice Samuel Chase, but he was not convicted by the Senate, and he continued to serve on the bench until his death in 1811. In 1969, Supreme Court Justice Abe Fortas resigned under threat of impeachment. There have been other calls for impeachment, of course, but these two stories represent the farthest such actions have managed to hinder a justice's career.
For the record, justices serve on average for 16 years. However, when we only take into consideration justices from after the 1970s, the average jumps to 26 years. The longest-serving justice was William O. Douglas, who sat on the bench for 36 years, seven months, and eight days.
Reasons for a lifetime appointment
This conversation is uniquely American. No other major democracy grants federal judges lifetime tenure. Some have mandatory retirement ages, some set term limits, and some do both. But the Founding Fathers had very specific concerns they were trying to counter with such a far-reaching policy.
Returning to the Constitution, Article III, Section 1, also states that federal judges shall receive compensation and that compensation "shall not be diminished during their Continuance in Office." (As of Jan. 1, 2018, associate justices receive a salary of $255,300, and the chief justice receives $267,000.)
The reason the Founders set no term limits goes hand-in-hand with their prohibition on diminishing wages: Both serve to prevent the legislative and executive branches from manipulating the courts. The wording of Article III means that neither the president nor Congress can institute term limits or a pay cut, ensuring judges are secure in their job and beholden to neither branch's whims.
Alexander Hamilton made this argument overt in The Federalist Papers: No. 78. "If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices," Hamilton wrote, "since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."
These Constitutional freedoms should (in theory) put justices above politics and allow them to rule through a fair, unbiased interpretation of the law. Rising above partisan politics would also allow the Supreme Court to stand as a lawful, counter-majoritarian force that could protect the rights of the minority in the face of popular politics. (Again, in theory. There have been times when the Supreme Court has enshrined popular tyranny into law—looking your way, Dred Scott v. Sandford.)
When it comes to the idea of imposing term limits, some worry that such an act would set a precedent that allows the other branches of government to further shackle the court's power—effectively negating the checks and balances set by the Founding Fathers.
"Imagine if Congress all of a sudden thought […] that it should be regulating the Supreme Court on a much more aggressive basis," said Stephen Vladeck, professor at the University of Texas at Austin School of Law, during a National Constitution Center debate on the subject. "I worry about a precedent where we start opening the door for Congress—especially this Congress—to flex its muscles, to use its power to try new ways to impose more and more constraints on the independence of the justices."
Should we set term limits on SCOTUS justices?
(Photo by Robin Marchant/Getty Images)
United States Supreme Court Justice Ruth Bader Ginsburg at the 2018 Sundance Film Festival. Appointed by President Clinton, Justice Ginsburg continues to serve at 85 years old.
But others on all points of the political spectrum say these arguments, while well intended, don't balance out the downsides of lifetime appointments. Some even argue that such aspirations for apolitical judges are wishful thinking.
"It's impossible for a position like this not to have political ramifications," argued Alan Morrison, professor at George Washington University Law, during the aforementioned National Constitution Center debate. He added:
Given the content of the work that they do and the kinds of questions they have to answer, does anybody really think that justices call balls and strikes—when the question is whether due process has been violated [or] whether the death penalty is a cruel and unusual punishment? Obviously, these are political offices, but unlike other political offices, people stay for a very, very long time.
Others note that lifetime terms add a factor of randomness in determining the court's makeup, a decidedly undemocratic mechanism in our system. Writing for the Week, Matt Bruenig points out that Jimmy Carter nominated no Supreme Court justices, yet Dwight D. Eisenhower nominated five. Bill Clinton appointed two in his two terms, while George H.W. Bush appointed the same number in one.
"Filling up the court in such a random manner makes its overall political composition more random as well," writes Bruenig, "rather than a democratic reflection of the political trends of the country as a whole."
Finally, there is the question of age. When Hamilton wrote the Federalist Papers, the average life expectancy in the Americas was about 35 years. Today, it is 77 years.
This means justices will serve much longer tenures on average than they did in the past. Such term lengths can prevent the bench from being updated to mirror social and culture progress. In the court's 228-year history, for example, only six of 113 justices have not been white men—two African-American men and four women.
Age also adds a political element to the bench. Justices will often choose to retire when a president is in office who echoes their political views, ensuring their seat continues to vote as they would.
"Justices have a conflicting set of obligations," Geoffrey R. Stone, a law professor at the University of Chicago, told the New York Times. "On the one hand, they have an obligation to serve their terms as long as they feel it's in the interest of the nation, and as long as they feel they can do the job well. But they have a conflicting desire, which is to perpetuate their view on the court. It's a political and personal judgement which they have to make for themselves."
Such worries extend to the justices themselves, who may hold onto their seats well beyond the point when their health fails them (as happened to Justice Thurgood Marshall). There is also the concern of what would happen if a justice developed dementia or lost other mental faculties.
Can anything be done?
Not much. The majority of Americans agree that term limits for federal judges should be enacted, but setting a such a limit would take an act of Congress.
Could both parties ultimately come to an agreement that such limits are beneficial? Maybe, but even if they did, it seems unlikely a situation would arise in which neither party felt such an act would not benefit one party over the other. Not to mention the bad blood from years of politicking to secure seats on the bench, such as the Merrick Garland incident.
The only real recourse the average American has is to vote for representatives that support their views, whether those views are for or against term limits.
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One victim can break our hearts. Remember the image of the young Syrian boy discovered dead on a beach in Turkey in 2015? Donations to relief agencies soared after that image went viral. However, we feel less compassion as the number of victims grows. Are we incapable of feeling compassion for large groups of people who suffer a tragedy, such as an earthquake or genocide? Of course not, but the truth is we aren't as compassionate as we'd like to believe, because of a paradox of large numbers. Why is this?
Compassion is a product of our sociality as primates. In his book, The Expanding Circle: Ethics, Evolution, and Moral Progress, Peter Singer states, "Human beings are social animals. We were social before we were human." Mr. Singer goes on to say, "We can be sure that we restrained our behavior toward our fellows before we were rational human beings. Social life requires some degree of restraint. A social grouping cannot stay together if its members make frequent and unrestrained attacks on one another."
Attacks on ingroups can come from forces of nature as well. In this light, compassion is a form of expressed empathy to demonstrate camaraderie.
Yet even after hundreds of centuries of evolution, when tragedy strikes beyond our community, our compassion wanes as the number of displaced, injured and dead mounts.
The drop-off in commiseration has been termed the collapse of compassion, (Slovic 2007).¹ The term has also been defined in The Oxford Handbook of Compassion Science: ". . . people tend to feel and act less compassionately for multiple suffering victims than for a single suffering victim."²
That the drop-off happens has been widely documented, but at what point this phenomenon happens remains unclear. One paper, written by Paul Slovic and Daniel Västfjäll, sets out a simple formula, ". . . where the emotion or affective feeling is greatest at N =1 but begins to fade at N = 2 and collapses at some higher value of N that becomes simply 'a statistic.'"³
The ambiguity of "some higher value" is curious. That value may relate to Dunbar's Number⁴, a theory developed by British anthropologist, Robin Dunbar. His research centers on communal groups of primates that evolved to support and care for larger and larger groups as their brains (our brains) expanded in capacity. Dunbar's is the number of people with whom we can maintain a stable relationship — approximately 150.
Some back story
Professor Robin Dunbar of the University of Oxford has published considerable research on anthropology and evolutionary psychology. His work is informed by anthropology, sociology and psychology. Dunbar's Number is a cognitive boundary, one we are likely incapable of breaching. The number is based around two notions; that brain size in primates correlates with the size of the social groups they live among and that these groups in human primates are relative to communal numbers set deep in our evolutionary past. In simpler terms, 150 is about the maximum number of people with whom we can identify with, interact with, care about, and work to protect. Dunbar's Number falls along a logorithmic continuum, beginning with the smallest, most emotionally connected group of five, then expanding outward in multiples of three: 5, 15, 50, 150. The numbers in these concentric circles are affected by multiple variables, including the closeness and size of immediate and extended families, along with the greater cognitive capacity of some individuals to maintain stable relationships with larger than normal group sizes. In other words, folks with more cerebral candlepower can engage with larger groups. Those with lesser cognitive powers, smaller groups.
The number that triggers "compassion collapse" might be different for individuals, but I think it may begin to unravel along the continuum of Dunbar's relatable 150. We can commiserate with 5 to 15 to 150 people because upon those numbers, we can overlay names and faces of people we know: our families, friends and coworkers, the members of our clan. In addition, from an evolutionary perspective, that number is important. We needed to care if bands of our clan were being harmed by raids, disaster, or disease, because our survival depended on the group staying intact. Our brains developed the capacity to care for the entirety of the group but not beyond it. Beyond our ingroup was an outgroup that may have competed with us for food and safety and it served us no practical purpose to feel sad that something awful had happened to them, only to learn the lessons so as to apply them for our own survival, e.g., don't swim with hippos.
Imagine losing 10 family members in a house fire. Now instead, lose 10 neighbors, 10 from a nearby town, 10 from Belgium, 10 from Vietnam 10 years ago. One could almost feel the emotion ebbing as the sentence drew to a close.
There are two other important factors which contribute to the softening of our compassion: proximity and time. While enjoying lunch in Santa Fe, we can discuss the death toll in the French revolution with no emotional response but might be nauseated to discuss three children lost in a recent car crash around the corner. Conflict journalists attempt to bridge these geotemporal lapses but have long struggled to ignite compassion in their home audience for far-flung tragedies, Being a witness to carnage is an immense stressor, but the impact diminishes across the airwaves as the kilometers pile up.
A Dunbar Correlation
Where is the inflection point at which people become statistics? Can we find that number? In what way might that inflection point be influenced by the Dunbar 150?
"Yes, the Dunbar number seems relevant here," said Gad Saad, PhD., the evolutionary behavioral scientist from the John Molson School of Business at Concordia University, Montreal, in an email correspondence. Saad also recommended Singer's work.
I also went to the wellspring. I asked Professor Dunbar by email if he thought 150 was a reasonable inflection point for moving from compassion into statistics. He graciously responded, lightly edited for space.
"The short answer is that I have no idea, but what you suggest is perfect sense.
"One-hundred and fifty is the inflection point between the individuals we can empathize with because we have personal relationships with them and those with whom we don't have personalized relationships. There is, however, also another inflection point at 1,500 (the typical size of tribes in hunter-gatherer societies) which defines the limit set by the number of faces we can put names to. After 1,500, they are all completely anonymous.
"All this is set out in various articles and books. The two most obvious are: Dunbar (2016) Human Evolution. Oxford University Press (and) Dunbar (2014). The social brain: psychological underpinnings and implications for the structure of organizations. Current Directions in Psychological Research 24: 109-114."
I asked Dunbar if he knows of or suspects a neurophysiological aspect to the point where we simply lose the capacity to manage our compassion:
"These limits are underpinned by the size of key bits of the brain (mainly the frontal lobes, but not wholly). There are a number of studies showing this, both across primate species and within humans."
In his literature, Professor Dunbar presents two reasons why his number stands at 150, despite the ubiquity of social networking: the first is time—investing our time in a relationship is limited by the number of hours we have available to us in a given week. The second is our brain capacity measured in primates by our brain volume.
Friendship, kinship and limitations
"We devote around 40% of our available social time to our 5 most intimate friends and relations," Dunbar has written, "(the subset of individuals on whom we rely the most) and the remaining 60% in progressively decreasing amounts to the other 145." ⁵
These brain functions are costly, in terms of time, energy and emotion. Dunbar states, "There is extensive evidence, for example, to suggest that network size has significant effects on health and well-being, including morbidity and mortality, recovery from illness, cognitive function, and even willingness to adopt healthy lifestyles." This suggests that we devote so much energy to our own network that caring about a larger number may be too demanding.
"These differences in functionality may well reflect the role of mentalizing competencies. The optimal group size for a task may depend on the extent to which the group members have to be able to empathize with the beliefs and intentions of other members so as to coordinate closely…" This neocortical-to-community model carries over to compassion for others, whether in or out of our social network. Time constrains all human activity, including time to feel.
As Dunbar writes in The Anatomy of Friendship, "Friendship is the single most important factor influencing our health, well-being, and happiness. Creating and maintaining friendships is, however, extremely costly, in terms of both the time that has to be invested and the cognitive mechanisms that underpin them. Nonetheless, personal social networks exhibit many constancies, notably in their size and their hierarchical structuring." Our mental capacity may be the primary reason we feel less empathy and compassion for larger groups; we simply don't have the cerebral apparatus to manage their plights. "Part of friendship is the act of mentalizing, or mentally envisioning the landscape of another's mind. Cognitively, this process is extraordinarily taxing, and as such, intimate conversations seem to be capped at about four people before they break down and form smaller conversational groups. If the conversation involves speculating about an absent person's mental state (e.g., gossiping), then the cap is three—which is also a number that Shakespeare's plays respect."
We cannot mentalize what is going on in the minds of people in our groups much beyond our inner circle, so it stands to reason we cannot do it for large groups separated from us by geotemporal lapses.
In a paper,⁶ C. Daryl Cameron and Keith B. Payne state, "Some researchers have suggested that [compassion collapse] happens because emotions are not triggered by aggregates. We provide evidence for an alternative account. People expect the needs of large groups to be potentially overwhelming, and, as a result, they engage in emotion regulation to prevent themselves from experiencing overwhelming levels of emotion. Because groups are more likely than individuals to elicit emotion regulation, people feel less for groups than for individuals."⁶
This argument seems to imply that we have more control over diminishing compassion than not. To say, "people expect the needs of large groups to be potentially overwhelming" suggests we consciously consider what that caring could entail and back away from it, or that we become aware that we are reaching and an endpoint of compassion and begin to purposely shift the framing of the incident from one that is personal to one that is statistical. The authors offer an alternative hypothesis to the notion that emotions are not triggered by aggregates, by attempting to show that we regulate our emotional response as the number of victims becomes perceived to be overwhelming. However, in the real world, for example, large death tolls are not brought to us one victim at a time. We are told, about a devastating event, then react viscerally.
If we don't begin to express our emotions consciously, then the process must be subconscious, and that number could have evolved to where it is now innate.
Gray matter matters
One of Dunbar's most salient points is that brain capacity influences social networks. In his paper, The Social Brain, he writes: "Path analysis suggests that there is a specific causal relationship in which the volume of a key prefrontal cortex subregion (or subregions) determines an individual's mentalizing skills, and these skills in turn determine the size of his or her social network (Powell et all., 2012)"
It's not only the size of the brain but in fact, mentalizing recruits different regions for ingroup empathy. The Stanford Center for Compassion and Altruism Research and Education published a study of the brain regions activated when showing empathy for strangers in which the authors stated, "Interestingly, in brain imaging studies of mentalizing, participants recruit more dorsal portions of the medial prefrontal cortex (dMPFC; BA 8/9) when mentalizing about strangers, whereas they recruit more ventral regions of the medial prefrontal cortex (BA 10), similar to the MPFC activation reported in the current study, when mentalizing about close others with whom participants experience self-other overlap."⁷
It's possible the region of the brain that activates to help an ingroup member evolved for good reason, survival of the group. Other regions may have begun to expand as those smaller tribal groups expanded into larger societies.
There is an eclectic list of reasons why compassion may collapse, irrespective of sheer numbers:
(1) Manner: How the news is presented affects viewer framing. In her book, European Foreign Conflict Reporting: A Comparative Analysis of Public News, Emma Heywood explores how tragedies and war are offered to the viewers, which can elicit greater or lesser compassionate responses. "Techniques, which could raise compassion amongst the viewers, and which prevail on New at Ten, are disregarded, allowing the victims to remain unfamiliar and dissociated from the viewer. This approach does not encourage viewers to engage with the sufferers, rather releases them from any responsibility to participate emotionally. Instead compassion values are sidelined and potential opportunities to dwell on victim coverage are replaced by images of fighting and violence."⁸
(2) Ethnicity. How relatable are the victims? Although it can be argued that people in western countries would feel a lesser degree of compassion for victims of a bombing in Karachi, that doesn't mean people in countries near Pakistan wouldn't feel compassion for the Karachi victims at a level comparable to what westerners might feel about a bombing in Toronto. Distance has a role to play in this dynamic as much as in the sound evolutionary data that demonstrate a need for us to both recognize and empathize with people who look like our communal entity. It's not racism; it's tribalism. We are simply not evolved from massive heterogeneous cultures. As evolving humans, we're still working it all out. It's a survival mechanism that developed over millennia that we now struggle with as we fine tune our trust for others.
In the end
Think of compassion collapse on a grid, with compassion represented in the Y axis and the number of victims running along the X. As the number of victims increases beyond one, our level of compassion is expected to rise. Setting aside other variables that may raise compassion (proximity, familiarity etc.), the level continues to rise until, for some reason, it begins to fall precipitously.
Is it because we've become aware of being overwhelmed or because we have reached max-capacity neuron load? Dunbar's Number seems a reasonable place to look for a tipping point.
Professor Dunbar has referred to the limits of friendship as a "budgeting problem." We simply don't have the time to manage a bigger group of friends. Our compassion for the plight of strangers may drop of at a number equivalent to the number of people with who we can be friends, a number to which we unconsciously relate. Whether or not we solve this intellectual question, it remains a curious fact that the larger a tragedy is, the more likely human faces are to become faceless numbers.
¹ Psychic Numbing and Genocide, Slovic, 2007 https://www.apa.org/science/about/psa/2007/11/slovic.aspx
² The Oxford Handbook of Compassion Science, 2017 http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780190464684.001.0001/oxfordhb-9780190464684-e-20
³ The More Who Die, the Less We Care: Psychic Numbing and Genocide
⁴ Dunbar's Number https://en.wikipedia.org/wiki/Dunbar%27s_number
⁵ The Social Brain: Psychological Underpinnings and Implications for the Structure of Organizations http://www2.psych.ubc.ca/~schaller/358Readings/Dunbar2014.pdf
⁶Escaping affect: how motivated emotion regulation creates insensitivity to mass suffering. (Cameron, Payne 2011) https://www.ncbi.nlm.nih.gov/pubmed/21219076
⁷ Stanford paper: "Empathy for the social suffering of friends and strangers recruits distinct patterns of brain activation"
⁸ European Foreign Conflict Reporting: A Comparative Analysis of Public News, Emma Heywood https://books.google.com/books?id=EAYqDwAAQBAJ&pg=PT115&lpg=PT115&dq=%E2%80%9CTechniques,+which+could+raise+compassion+amongst+the+viewers,+and+which+prevail+on+New+at+Ten&source=bl&ots=HgZpkKc-u5&sig=ACfU3U31FtWtYZby8QD9XQWR_8qMIHgnzA&hl=en&sa=X&ved=2ahUKEwj8ndu05dngAhXwnuAKHVFcDHcQ6AEwAHoECAkQAQ#v=onepage&q=%E2%80%9CTechniques%2C%20which%20could%20raise%20compassion%20amongst%20the%20viewers%2C%20and%20which%20prevail%20on%20New%20at%20Ten&f=false
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