‘Til Death

Linda Greenhouse, Supreme Court reporter for the New York Times and noted diva, has an article today discussing life tenure for federal judges. The point of this post is not to delve too deeply into the merits of that argument, but I’d like to make a couple of observations.

First, regardless of how many law professors or political scientists are writing articles no one reads about this topic, I doubt it would have warranted an article in the New York Times if it weren’t for the fact that a Republican president nominated two conservative jurists to the Court during the current Presidency and the next three likely retirees on the current Court are liberal jurists who are hanging on hoping for a Democratic president.

Second, one common argument mentioned during this discussion is that the Founding Fathers would be shocked by the fact that human lifespans now extend decades longer than they typically did in the 1700’s. Following from that, it is argued, they would not be in favor of lifetime tenure now. That argument is often made as if it is plainly true on its face, but I don’t agree. Would lengthened lifespans really have caused the framers to write in term limits for judges? I’m not really sure, and it never gets discussed as far as I know. The framers were the educated elite of their time. Was it out of the realm of the possibility for such men to imagine that scientific and societal improvements would not lengthen people’s lives?

I think the real point of this argument is the underlying issue of the increasing “judicialization” of so many parts of our politics and society. Even war now has to be put before the Court. Greenhouse’s article notes that the jump in average length of time on the Supreme Court almost doubled starting in the 1970’s, which roughly corresponds to a time when the Court began to be a major battlefield between political parties. In my opinion, term limits for judges aren’t going to solve many of these problems and are liable to create some more unintended consequences down the line.

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