In Federalist No, 78, Alexander Hamilton famously argued that the federal courts were “the least dangerous” branch of government. What he did not understand was that they also proved, over time, to be the worst constructed. The problems here start at the top and work their way down to the bottom. As a recent New York Times column by Duke law professor Paul Carrington points out, the Constitution states that “the judges, both of the supreme and inferior Courts shall hold their offices during good behavior,” which, except in cases of corruption or moral turpitude, effectively means for life.
Big mistake. As Carrington notes, longer life spans now translate into terms of thirty or more years. The independence of the judiciary can be easily preserved with either term limits, say, of eighteen years, or a mandatory retirement age of seventy. Nearly every modern legal system understands the virtue of limiting judicial terms.
Unfortunately, Carrington’s preferred solution is no solution at all. He proposes appointing a new justice every two years. But, he writes, “only the nine most junior justices, by years of service, would sit and decide every case. The rest would then act as a sort of ‘bench’ team, sitting on cases as needed because of the disability or disqualification of one of the junior justices.”
Adding new justices would make the fate of major legislation turn on whether a substitute justice votes in a manner contrary to that of the full-time justice. This change won’t happen without a constitutional amendment, even though one that better solves our problems than Carrington’s proposal is easy enough to draft: “No Supreme Court Justice shall serve for a term of more than eighteen years.” Continue reading my column at Defining Ideas.