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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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Emotional intelligence is a skill sought by many employers. Here's how to raise yours.
- Daniel Goleman's 1995 book Emotional Intelligence catapulted the term into widespread use in the business world.
- One study found that EQ (emotional intelligence) is the top predictor of performance and accounts for 58% of success across all job types.
- EQ has been found to increase annual pay by around $29,000 and be present in 90% of top performers.
The achievement is an important milestone in quantum computing, Google's scientists said.
- Sycamore is a quantum computer that Google has spent years developing.
- Like traditional computers, quantum computers produce binary code, but they do so while utilizing unique phenomena of quantum mechanics.
- It will likely be years before quantum computing has applications in everyday technology, but the recent achievement is an important proof of concept.
How quantum computers differ from traditional computers<p>Like traditional computers, quantum computers produce binary code to execute computing functions. But instead of using transistors to represent the ones and zeroes, as traditional computers do, quantum computers like Sycamore use quantum bits, or "qubits."</p><p>Qubits are extremely tiny pieces of hardware that act like subatomic particles, utilizing quantum phenomena like entanglement, superposition, and interference. Qubits can represent ones and zeroes. But thanks to superposition, qubits are also able to represent multiple states at the same time, meaning they can make calculations much faster than traditional computers. That's what helped Sycamore recently outperform a supercomputer.</p><p>Sycamore achieved "quantum supremacy," which occurs when a quantum computer can do something that a traditional computer cannot. To pass this benchmark, Google engineers pit Sycamore against the world's leading supercomputer, Summit, which is housed at Oak Ridge National Laboratory in Tennessee.</p><p>"Summit is currently the world's leading supercomputer, capable of carrying out about 200 million billion operations per second," William Oliver, a physicist at the Massachusetts Institute of Technology, wrote in a <a href="https://www.nature.com/articles/d41586-019-03173-4" target="_blank">"News and Views" piece</a> for <em>Nature</em>.</p><p>But the contest between Sycamore and Summit involved a highly specific task, one that was specifically designed to give a competitive edge to a quantum computer like Sycamore.</p>
Beating the world's leading supercomputer<p>The task involved estimating how likely it was that a processor would produce some "bitstrings" more often than others. As you continue to add information to the equation, it becomes exponentially difficult for traditional computers to conduct the calculations. (You can read more about the experiment <a href="https://ai.googleblog.com/2019/10/quantum-supremacy-using-programmable.html" target="_blank">here</a>.)</p><p>"We performed a fixed set of operations that entangles 53 qubits into a complex superposition state," Ben Chiaro, a graduate student researcher in the Martinis Group, which conducted the experiment, told <em><a href="https://www.sciencedaily.com/releases/2019/10/191023133358.htm" target="_blank">Science Daily</a></em>. "This superposition state encodes the probability distribution. For the quantum computer, preparing this superposition state is accomplished by applying a sequence of tens of control pulses to each qubit in a matter of microseconds. We can prepare and then sample from this distribution by measuring the qubits a million times in 200 seconds."</p><p>"For classical computers, it is much more difficult to compute the outcome of these operations because it requires computing the probability of being in any one of the 2^53 possible states, where the 53 comes from the number of qubits -- the exponential scaling is why people are interested in quantum computing to begin with," Brooks Foxen, another graduate student researcher in the Martinis Group, told <em>Science Daily</em>. "This is done by matrix multiplication, which is expensive for classical computers as the matrices become large."</p><p>But the specific nature of this task has led some to question the utility of quantum computers like Sycamore.</p><p>"One criticism we've heard a lot is that we cooked up this contrived benchmark problem—[Sycamore] doesn't do anything useful yet," Hartmut Neven, a Google engineering director said at a press event on Wednesday. "That's why we like to compare it to a Sputnik moment. Sputnik didn't do much either. All it did was circle Earth. Yet it was the start of the Space Age."</p>
A proof of concept for quantum computing<p>Although it could be decades until we see quantum computing powering everyday devices, Sycamore serves as a proof of concept that there exists a form of computing that has the potential to be vastly superior to traditional computing.</p><p>"This demonstration of quantum supremacy over today's leading classical algorithms on the world's fastest supercomputers is truly a remarkable achievement and a milestone for quantum computing," Oliver wrote in his piece for <em>Nature</em>. "It experimentally suggests that quantum computers represent a model of computing that is fundamentally different from that of classical computers. It also further combats criticisms about the controllability and viability of quantum computation in an extraordinarily large computational space (containing at least the 253 states used here)."</p>
A study published Friday tested how well 14 commonly available face masks blocked the emission of respiratory droplets as people were speaking.
- The study tested the efficacy of popular types of face masks, including N95 respirators, bandanas, cotton-polypropylene masks, gaiters, and others.
- The results showed that N95 respirators were most effective, while wearing a neck fleece (aka gaiter) actually produced more respiratory droplets than wearing no mask at all.
- Certain types of homemade masks seem to be effective at blocking the spread of COVID-19.
Fischer et al.<p>A smartphone camera recorded video of the participants, and a computer algorithm counted the number of droplets they emitted. To establish a control trial, the participants spoke into the box both with and without a mask. And to make sure that the droplets weren't in fact dust from the masks, the team conducted more tests by "repeatedly puffing air from a bulb through the masks."</p>
Fischer et al.<p>The results, published Friday in <a href="https://advances.sciencemag.org/content/early/2020/08/07/sciadv.abd3083" target="_blank">Science Advances</a>, showed that some masks are pretty much useless. In particular, neck fleeces (also called gaiters) actually produced more respiratory droplets compared to the control trial — likely because the fabric breaks down big droplets into smaller ones.</p><p>The top three most effective masks were N95 respirators, surgical masks, and polypropylene-cotton masks. Bandanas performed the worst, but were slightly better than wearing no mask at all.</p>
Fischer et al.<p>Research on mask efficacy is still emerging. But the new results seem to generally align with <a href="https://newsroom.wakehealth.edu/News-Releases/2020/04/Testing-Shows-Type-of-Cloth-Used-in-Homemade-Masks-Makes-a-Difference" target="_blank" rel="noopener noreferrer dofollow">prior tests</a>. For example, a study from June published in <a href="https://aip.scitation.org/doi/10.1063/5.0016018" target="_blank" rel="noopener noreferrer dofollow">Physics of Fluid</a> found that bandanas (followed by folded handkerchiefs) were least effective at blocking respiratory droplets. That same study also found, as <a href="https://newsroom.wakehealth.edu/News-Releases/2020/04/Testing-Shows-Type-of-Cloth-Used-in-Homemade-Masks-Makes-a-Difference" target="_blank" rel="noopener noreferrer dofollow">others have</a>, that masks made from multiple layers of quilter's fabric were especially effective at blocking droplets.</p><p>The researchers hope other institutions will conduct similar experiments so the public can see how well different masks can block the spread of COVID-19.</p><p style="margin-left: 20px;">"This is a very powerful visual tool to raise awareness that a very simple masks, like these homemade cotton masks, do really well to stop the majority of these respiratory droplets," Fischer told CNN. "Companies and manufacturers can set this up and test their mask designs before producing them, which would also be very useful."</p>
Sharing QAnon disinformation is harming the children devotees purport to help.
- The conspiracy theory, QAnon, is doing more harm than good in the battle to end child trafficking.
- Foster youth expert, Regan Williams, says there are 25-29k missing children every year, not 800k, as marketed by QAnon.
- Real ways to help abused children include donating to nonprofits, taking educational workshops, and becoming a foster parent.
Real ways you can help stop child trafficking<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="21fc2dc85391501eec28c4bf46d7db15"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/AXL0q9jNZGU?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span><p>Williams is the founder and CEO of <a href="http://www.seenandheard.org/" target="_blank">Seen and Heard</a>, a Los Angeles-based nonprofit that helps foster youth develop character through the performing arts. She's been involved with foster youth for years; I <a href="https://bigthink.com/politics-current-affairs/child-sex-trafficking" target="_self">wrote about her work</a> in child trafficking just over a year ago. Tragically, since that time, the situation for these children has only gotten worse, in large part because of QAnon.</p><p>Williams says child trafficking is an easy cause to rally people together. Fear is also a powerful unifying force, one that QAnon believers are already primed for via the news they consume. Almost every parent cares about their children, making them the ideal target to solidify groups. </p><p>The real problem, she says, is that the youth she works with are falling for these conspiracy theories. Trauma is a particularly powerful tool for indoctrination. If you're a teenager that's been abducted or abused, your trust level is already extremely low. Then you read about a global cabal of powerful men (and a few women) secretly abusing children, and the narrative seems ready-made for your personal history.</p><p>When Williams tried to "lovingly and kindly correct" the youth she was working with after learning about the Wayfair conspiracy, the girls' response was, "well, who owns the media?" </p><p style="margin-left: 20px;">"She goes from this small little thing to a QAnon talking point. I've been thinking about why she would believe such a preposterous idea—and there are others; it's not just one student, and they're in in deep. I think that when something horrific happens to you as a child, it's a lot easier to distance yourself from the immediate reality that it was an uncle or a parent or a sibling that hurt you. By detaching from that immediate person, they project it onto Bill Gates or Chrissy Teigen. Then it's not so personal, it's global." </p>
A man wear a shirt with the words Q Anon as he attends a rally for President Donald Trump at the Make America Great Again Rally being held in the Florida State Fair Grounds Expo Hall on July 31, 2018 in Tampa, Florida.
Photo by Joe Raedle/Getty Images<p>As Williams mentions, there are over 30,000 kids in foster care in the Los Angeles area alone. It's easy to fall through the cracks. The systems in place aren't perfect; they're certainly underfunded. When you're in a system trying to support you yet isn't capable of doing so, viewing the world as imperfect, and even harmful, becomes the lens through which you see reality. Again, this makes for a perfect indoctrination tool.</p><p>One popular QAnon talking point is that 800,000 children are missing. As Williams says, child trafficking experts "don't buy this for a minute." The number makes for a good meme but a poor representation of the problem. </p><p>To source better data, Williams turns to the <a href="https://www.missingkids.org/" target="_blank">National Center for Missing and Exploited Children</a> (NCMEC) and the <a href="https://www.fbi.gov/services/cjis/ncic" target="_blank" rel="noopener noreferrer dofollow">National Crime Information Center</a> (NCIC). An important factor when reading data: if a teacher <em>and</em> a caregiver report a missing child to NCIC, that counts as two children, not one, which accounts for some of the fluctuations in numbers. In total, between 25,000 and 29,000 kids go missing every year. Importantly, 94 percent of those children are recovered within four to six weeks. </p><p style="margin-left: 20px;">"They're not documenting the recovery rate. It's not like these numbers are perpetually hanging out there. So this 800,000 number is just ludicrous." </p><p>Williams compares what's going on to Black Lives Matter. Blacking out your Instagram profile picture is performative. It signals that you actually care, which is great, but if you're not supporting Black-owned businesses, for example, there are no teeth to your activism. </p><p>Of course, blacking out your profile doesn't cause the real-world harm the QAnon virus does. Sharing misinformation is ultimately harmful to the children in need of help. Williams offers the resources below—ranging from donations to nonprofits to educational trainings to becoming a foster parent—for people that actually want to do something to help victims of sexual and physical abuse. They might not make a great Twitter meme, but in the actual world, this support makes all the difference. </p><p><strong>To report abuse/neglect, call the child abuse hotline: 800.540.4000 (LA county) / 800.422.4453 (National)</strong></p><ul><li>Support anti-trafficking organizations by donating to <a rel="noopener noreferrer dofollow" href="http://savinginnocence.org/" target="_blank">Saving Innocence</a>, which runs the continuum of care from rescue to recovery, <a href="http://gozoe.org/" target="_blank" rel="noopener noreferrer dofollow">Zoe</a>, a reputable faith-based organization, and <a rel="noopener noreferrer dofollow" href="https://withtwowings.org/" target="_blank">Two Wings</a>, which helps to rehabilitate female survivors</li><li><a rel="noopener noreferrer dofollow" href="http://www.nolabrantleyspeaks.org/" target="_blank">Nola Brantley</a> offers in-person and online trainings to help combat the commercial sexual exploitation of children</li><li><a rel="noopener noreferrer dofollow" href="http://instagram.com/imrebeccabender" target="_blank">Rebecca Bender</a> is a trafficking survivor that runs "Myth Busters," which combats conspiracy theory disinformation</li><li>The <a href="https://www.instagram.com/missingkids/" target="_blank" rel="noopener noreferrer dofollow">National Center</a> of Missing and Exploited Children</li><li>Operation <a href="https://www.instagram.com/ourrescue/" target="_blank" rel="noopener noreferrer dofollow">Underground Railroad </a></li><li><a href="https://www.instagram.com/defendinnocence/" target="_blank" rel="noopener noreferrer dofollow">Defend Innocence</a> offers tips for parents and caregivers to keep kids safe</li></ul><p><span></span>--</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>