Law Professors Debate Reforming the Supreme Court

Law Professors Debate Reforming the Supreme Court

Term limits, reducing the number of clerks discussed

Friday, April 22, 2005

Durham, N.C. -- The United States Supreme Court was called a

"gerontocracy" at a Duke Law School conference April 9 th, likened to

the leadership cadres of the Chinese Communist Party. But that party

is a step up on the Court, said Northwestern University Law Professor

James Lindgren in defending the charge: Its leaders are required to

retire at 80, while justices serve for life.

"Reforming the Supreme Court?" brought together top constitutional law

and Supreme Court scholars for a spirited discussion of the costs and

benefits of life tenure for justices, and an exploration of possible

alternatives. Organized by law professors Paul Carrington of Duke and

Roger Cramton of Cornell, who have co-authored a statutory proposal to

limit Supreme Court terms, the conference was sponsored by the Program

in Public Law.

Lindgren opened the conference with a look at Court statistics: While

the average age of justices at the time of their appointments has long

been steady at 53, the average retirement age has risen to 79, up from

68 for those retiring before 1970. Since 1970, too, the average length

of service for justices has jumped from 14.9 years (more or less a

constant since 1789) to 25.6 years. Among the reasons offered by

participants for justices' working well into their 70s and 80s:

improvements in health care resulting in increased longevity, and a

workload in steady decline, partly due to the Court's power to select

the cases it takes-the "certiorari power"-and partly the result of

delegation to clerks, whose numbers have quadrupled in the past 60

years.

"It is entirely possible for a justice in decay and decrepitude to

grind out opinions with the help of clerks," alleged Daniel Meador of

the University of Virginia.

A return to the 1946 standard of one clerk per justice would heal

whatever ails the Court, maintained David Garrow of Emory University

Law School, a supporter of life tenure.

"Everyone knows that it would be a better Court if the role of the

clerks was dramatically reduced."

Others found much more to criticize, alleging that Justices lose touch

with the real world after decades in the Court, and noting that a long

drought in vacancies-the last came 11 years ago-increases the rancor

of the confirmation process, and encourages the appointment of

youthful, inexperienced, idealogues, as well as "strategic

retirements"-justices hang on past their prime in order to give a

certain president or party a chance at an appointment. The Supreme

Court, it was noted, is unique among American institutions and world

courts, in placing individuals in office indefinitely.

A number of reform proposals called for justices to serve 18-year

terms on the Supreme Court, rotating on at two-year intervals. That

would ensure that most one-term presidents would be able to fill two

vacancies.

"Knowing that a vacancy was going to open up at regular intervals

would lower the stakes for filling any one vacancy now," said Steven

Calabresi of Northwestern Law School. "Knowing that you were only

confirming somebody for an 18-year term, not potentially for a 35-year

term, would also lower the stakes greatly."

On the other hand, countered Ward Farnsworth of Boston University Law

School, term limits could embolden presidents to nominate more

ideologically extreme nominees who would get waived through the

approval process on the theory their extremism would be offset by a

later nominee.

"Life tenure and keeping the stakes of the decision very high forces a

lot of compromise, and forces more moderate people. That's exactly why

Robert Bork wasn't confirmed, and why Justice Kennedy was."

Most of the term-limit proposals contemplated life appointments to the

federal judiciary; on the expiration of their Supreme Court terms,

justices would take seats on lower courts of appeals.

For his part, Farnsworth expressed skepticism that having developed a

taste for life at the top, justices would make the transition happily.

Those who knew they would be relatively young and vigorous at the end

of their terms could spend their term angling for a more glamorous

post.

"I worry that [they] will think ahead: "How is what I'm doing here on

the Supreme Court going to affect my prospects when I leave?'"

Whether change, too, would best be accomplished by constitutional

amendment or by statute also came up for debate.

"There's nothing in the constitution that says they serve for life, it

says "for good behavior,'" said Carrington. "Congress can define that

in ways that do provide encouragement, inducement and, indeed, even

requirements for them to step down at some point. The one thing

Congress can't do without violating the good behavior notion is to

employ some kind of system which is intended to influence the decision

of particular cases."

The bottom line, he argued, is that requiring a constitutional

amendment renders the whole discussion moot. "One the problems with

our Constitution is that it's very hard to amend."

Quite apart from the deeply held belief by many reform proponents and

opponents alike that life terms are constitutionally mandated, and

thus require a formal amendment, a number expressed alarm at giving

Congress an opening to tinker with the Court by statute. They

repeatedly invoked the controversy over various judicial rulings in

the recent Schiavo case.

"Once Congress starts tinkering by statute with the tenure of

justices, they'll be tempted to tinker with it again to change the

outcome of cases that they might not like, that the Court would hand

down. I don't want to give Congress that power," said Calabresi.

While the debate was both fierce and friendly throughout the

conference, Cramton was clear that it was intended to produce

practical, not theoretical, results.

"We've started talking with the Senate Judiciary Committee, and we're

going to have conversations with the staff and try to identify some

senators on both sides who might want to support legislative hearings

on the topic, so they could hear the kind of debate that's going on

here, as to whether there is a problem that needs attention, and, if

so, what could be done about it."

A webcast of "Reforming the Supreme Court?" will be available soon

here.

Frances Presma

School of Law

T: 613-7248

Email: presma@law.duke.edu