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
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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?
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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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Upstreamism advocate Rishi Manchanda calls us to understand health not as a "personal responsibility" but a "common good."
- Upstreamism tasks health care professionals to combat unhealthy social and cultural influences that exist outside — or upstream — of medical facilities.
- Patients from low-income neighborhoods are most at risk of negative health impacts.
- Thankfully, health care professionals are not alone. Upstreamism is increasingly part of our cultural consciousness.
- A huge segment of America's population — the Baby Boom generation — is aging and will live longer than any American generation in history.
- The story we read about in the news? Their drain on social services like Social Security and Medicare.
- But increased longevity is a cause for celebration, says Ashton Applewhite, not doom and gloom.
Some evidence attributes a certain neurological phenomenon to a near death experience.
Time of death is considered when a person has gone into cardiac arrest. This is the cessation of the electrical impulse that drive the heartbeat. As a result, the heart locks up. The moment the heart stops is considered time of death. But does death overtake our mind immediately afterward or does it slowly creep in?
Researchers hope the technology will further our understanding of the brain, but lawmakers may not be ready for the ethical challenges.
- Researchers at the Yale School of Medicine successfully restored some functions to pig brains that had been dead for hours.
- They hope the technology will advance our understanding of the brain, potentially developing new treatments for debilitating diseases and disorders.
- The research raises many ethical questions and puts to the test our current understanding of death.
The image of an undead brain coming back to live again is the stuff of science fiction. Not just any science fiction, specifically B-grade sci fi. What instantly springs to mind is the black-and-white horrors of films like Fiend Without a Face. Bad acting. Plastic monstrosities. Visible strings. And a spinal cord that, for some reason, is also a tentacle?
But like any good science fiction, it's only a matter of time before some manner of it seeps into our reality. This week's Nature published the findings of researchers who managed to restore function to pigs' brains that were clinically dead. At least, what we once thought of as dead.
What's dead may never die, it seems
The researchers did not hail from House Greyjoy — "What is dead may never die" — but came largely from the Yale School of Medicine. They connected 32 pig brains to a system called BrainEx. BrainEx is an artificial perfusion system — that is, a system that takes over the functions normally regulated by the organ. The pigs had been killed four hours earlier at a U.S. Department of Agriculture slaughterhouse; their brains completely removed from the skulls.
BrainEx pumped an experiment solution into the brain that essentially mimic blood flow. It brought oxygen and nutrients to the tissues, giving brain cells the resources to begin many normal functions. The cells began consuming and metabolizing sugars. The brains' immune systems kicked in. Neuron samples could carry an electrical signal. Some brain cells even responded to drugs.
The researchers have managed to keep some brains alive for up to 36 hours, and currently do not know if BrainEx can have sustained the brains longer. "It is conceivable we are just preventing the inevitable, and the brain won't be able to recover," said Nenad Sestan, Yale neuroscientist and the lead researcher.
As a control, other brains received either a fake solution or no solution at all. None revived brain activity and deteriorated as normal.
The researchers hope the technology can enhance our ability to study the brain and its cellular functions. One of the main avenues of such studies would be brain disorders and diseases. This could point the way to developing new of treatments for the likes of brain injuries, Alzheimer's, Huntington's, and neurodegenerative conditions.
"This is an extraordinary and very promising breakthrough for neuroscience. It immediately offers a much better model for studying the human brain, which is extraordinarily important, given the vast amount of human suffering from diseases of the mind [and] brain," Nita Farahany, the bioethicists at the Duke University School of Law who wrote the study's commentary, told National Geographic.
An ethical gray matter
Before anyone gets an Island of Dr. Moreau vibe, it's worth noting that the brains did not approach neural activity anywhere near consciousness.
The BrainEx solution contained chemicals that prevented neurons from firing. To be extra cautious, the researchers also monitored the brains for any such activity and were prepared to administer an anesthetic should they have seen signs of consciousness.
Even so, the research signals a massive debate to come regarding medical ethics and our definition of death.
Most countries define death, clinically speaking, as the irreversible loss of brain or circulatory function. This definition was already at odds with some folk- and value-centric understandings, but where do we go if it becomes possible to reverse clinical death with artificial perfusion?
"This is wild," Jonathan Moreno, a bioethicist at the University of Pennsylvania, told the New York Times. "If ever there was an issue that merited big public deliberation on the ethics of science and medicine, this is one."
One possible consequence involves organ donations. Some European countries require emergency responders to use a process that preserves organs when they cannot resuscitate a person. They continue to pump blood throughout the body, but use a "thoracic aortic occlusion balloon" to prevent that blood from reaching the brain.
The system is already controversial because it raises concerns about what caused the patient's death. But what happens when brain death becomes readily reversible? Stuart Younger, a bioethicist at Case Western Reserve University, told Nature that if BrainEx were to become widely available, it could shrink the pool of eligible donors.
"There's a potential conflict here between the interests of potential donors — who might not even be donors — and people who are waiting for organs," he said.
It will be a while before such experiments go anywhere near human subjects. A more immediate ethical question relates to how such experiments harm animal subjects.
Ethical review boards evaluate research protocols and can reject any that causes undue pain, suffering, or distress. Since dead animals feel no pain, suffer no trauma, they are typically approved as subjects. But how do such boards make a judgement regarding the suffering of a "cellularly active" brain? The distress of a partially alive brain?
The dilemma is unprecedented.
Setting new boundaries
Another science fiction story that comes to mind when discussing this story is, of course, Frankenstein. As Farahany told National Geographic: "It is definitely has [sic] a good science-fiction element to it, and it is restoring cellular function where we previously thought impossible. But to have Frankenstein, you need some degree of consciousness, some 'there' there. [The researchers] did not recover any form of consciousness in this study, and it is still unclear if we ever could. But we are one step closer to that possibility."
She's right. The researchers undertook their research for the betterment of humanity, and we may one day reap some unimaginable medical benefits from it. The ethical questions, however, remain as unsettling as the stories they remind us of.
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