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.
The why of lifetime appointments<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8xODY0MjI5OC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY1NTk3NTg0N30.-0ZZOdmawao0LwfXWv5_uWZ5h4TVQLCRAAWbMr39D1E/img.jpg?width=1245&coordinates=0%2C0%2C0%2C1325&height=700" id="27509" class="rm-shortcode" data-rm-shortcode-id="4f89b529f0750fc0e053c85e856e337b" data-rm-shortcode-name="rebelmouse-image" alt="SCOTUS justices are granted a lifetime appointment under Article III, Section 1 of the U.S. Constitution." />
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)<p> The U.S. Constitution doesn't specifically grant Supreme Court justices a lifetime appointment. Instead, Article III, Section 1, <a href="https://www.archives.gov/founding-docs/constitution-transcript" target="_blank">states that</a> federal judges "shall hold their Offices during good Behavior" and… that's it. As long as <a href="https://bigthink.com/risk-reason-and-reality/has-the-supreme-court-become-dishonest-and-untrustworthy-one-of-its-members-thinks-so" target="_blank">federal judges don't commit a crime</a> — and remember their pleases and thank yous — they keep their seat. </p><p> 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. </p><p> Most federal judges exit by way of death or resignation, with impeachment coming into play sparingly. <a href="https://www.fjc.gov/history/judges/impeachments-federal-judges" target="_blank"> <u>Only 15 federal judges</u></a> 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. </p><p> 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 <a href="https://www.washingtonpost.com/news/answer-sheet/wp/2015/12/12/can-a-supreme-court-justice-be-forcibly-removed-from-the-bench-a-quick-civics-lesson/?utm_term=.73eeffed1b67" target="_blank">other calls for impeachment</a>, of course, but these two stories represent the farthest such actions have managed to hinder a justice's career.</p><p> For the record, justices serve on average <a href="https://www.supremecourt.gov/about/faq_justices.aspx" target="_blank">for 16 years.</a> However, when we only take into consideration justices from after the 1970s, the average jumps to <a href="https://www.cbsnews.com/news/dems-choices-for-bench-suprisingly-slim/" target="_blank">26 years</a>. The longest-serving justice was William O. Douglas, who sat on the bench for 36 years, seven months, and eight days.</p>
Reasons for a lifetime appointment<p>This conversation is uniquely American. No other major democracy grants federal judges lifetime tenure. Some have mandatory retirement ages, some set term limits, and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=701121" target="_blank">some do both</a>. But the Founding Fathers had very specific concerns they were trying to counter with such a far-reaching policy. </p><p> 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 <a href="https://www.fjc.gov/history/judges/judicial-salaries-supreme-court-justices" target="_blank">receive a salary</a> of $255,300, and the chief justice receives $267,000.) </p><p> 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. </p><p> Alexander Hamilton made this argument overt in <em><a href="http://avalon.law.yale.edu/18th_century/fed78.asp" target="_blank">The Federalist Papers: No. 78</a></em>. "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."</p><p> 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, <a href="https://schultzstake.blogspot.com/2015/07/getting-money-out-of-politics-two-essays.html" target="_blank"><u>counter-majoritarian</u></a> 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, <a href="https://www.pbs.org/wgbh/aia/part4/4p2932.html" target="_blank"><u><em>Dred Scott v. Sandford</em></u></a><em>.)</em></p><p> 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. </p><p> "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 <a href="https://www.youtube.com/watch?v=F9kCV0JeuVg" target="_blank"><u>National Constitution Center debate on the subject</u></a>. "I worry about a precedent where we start opening the door for Congress—especially <em>this </em>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." </p>
Should we set term limits on SCOTUS justices?<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8xODY0MjMzMC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY0MTMwOTk2MX0.t_isHAgTXOnF76tcXpbGZjj3Epg3LzvXT89Jk3G_MkA/img.jpg?width=1245&coordinates=0%2C45%2C0%2C594&height=700" id="10190" class="rm-shortcode" data-rm-shortcode-id="e22f5bb76eeb023616683721c10600bc" data-rm-shortcode-name="rebelmouse-image" alt="United States Supreme Court Justice Ruth Bader Ginsburg at the 2018 Sundance Film Festival. " />
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)