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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
A close up of the U.S. Constitution. SCOTUS justices are granted a lifetime appointment under Article III, Section 1.
(Photo by Tetra Images/Getty Images)
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?
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.
(Photo by Robin Marchant/Getty Images)
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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Construction of the $500 billion dollar tech city-state of the future is moving ahead.
- The futuristic megacity Neom is being built in Saudi Arabia.
- The city will be fully automated, leading in health, education and quality of life.
- It will feature an artificial moon, cloud seeding, robotic gladiators and flying taxis.
The Red Sea area where Neom will be built:
Saudi Arabia Plans Futuristic City, "Neom" (Full Promotional Video)<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="c646d528d230c1bf66c75422bc4ccf6f"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/N53DzL3_BHA?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span>
Frequent shopping for single items adds to our carbon footprint.
- A new study shows e-commerce sites like Amazon leave larger greenhouse gas footprints than retail stores.
- Ordering online from retail stores has an even smaller footprint than going to the store yourself.
- Greening efforts by major e-commerce sites won't curb wasteful consumer habits. Consolidating online orders can make a difference.
A pile of recycled cardboard sits on the ground at Recology's Recycle Central on January 4, 2018 in San Francisco, California.
Photo by Justin Sullivan/Getty Images<p>A large part of the reason is speed. In a competitive market, pure players use the equation, <em>speed + convenience</em>, to drive adoption. This is especially relevant to the "last mile" GHG footprint: the distance between the distribution center and the consumer.</p><p>Interestingly, the smallest GHG footprint occurs when you order directly from a physical store—even smaller than going there yourself. Pure players, such as Amazon, are the greatest offenders. Variables like geographic location matter; the team looked at shopping in the UK, the US, China, and the Netherlands. </p><p>Sadegh Shahmohammadi, a PhD student at the Netherlands' Radboud University and corresponding author of the paper, <a href="https://www.cnn.com/2020/02/26/tech/greenhouse-gas-emissions-retail/index.html" target="_blank">says</a> the above "pattern holds true in countries where people mostly drive. It really depends on the country and consumer behavior there."</p><p>The researchers write that this year-and-a-half long study pushes back on previous research that claims online shopping to be better in terms of GHG footprints.</p><p style="margin-left: 20px;">"They have, however, compared the GHG emissions per shopping event and did not consider the link between the retail channels and the basket size, which leads to a different conclusion than that of the current study."</p><p>Online retail is where convenience trumps environment: people tend to order one item at a time when shopping on pure player sites, whereas they stock up on multiple items when visiting a store. Consumers will sometimes order a number of separate items over the course of a week rather than making one trip to purchase everything they need. </p><p>While greening efforts by online retailers are important, until a shift in consumer attitude changes, the current carbon footprint will be a hard obstacle to overcome. Amazon is trying to have it both ways—carbon-free and convenience addicted—and the math isn't adding up. If you need to order things, do it online, but try to consolidate your purchases as much as possible.</p><p>--</p><p><em>Stay in touch with Derek on <a href="http://www.twitter.com/derekberes" target="_blank">Twitter</a>, <a href="https://www.facebook.com/DerekBeresdotcom" target="_blank">Facebook</a> and <a href="https://derekberes.substack.com/" target="_blank">Substack</a>. His next book is</em> "<em>Hero's Dose: The Case For Psychedelics in Ritual and Therapy."</em></p>
Building a personal connection with students can counteract some negative side effects of remote learning.
- Not being able to engage with students in-person due to the pandemic has presented several new challenges for educators, both technical and social. Digital tools have changed the way we all think about learning, but George Couros argues that more needs to be done to make up for what has been lost during "emergency remote teaching."
- One interesting way he has seen to bridge that gap and strengthen teacher-student and student-student relationships is through an event called Identity Day. Giving students the opportunity to share something they are passionate about makes them feel more connected and gets them involved in their education.
- "My hope is that we take these skills and these abilities we're developing through this process and we actually become so much better for our kids when we get back to our face-to-face setting," Couros says. He adds that while no one can predict the future, we can all do our part to adapt to it.
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