Costco Connection - November 2005

Leane Capps Medford is head of the appellate section at the law firm Rose Walker in Dallas, Texas. She studies trends in the U.S. Supreme Court.

The recent death of Chief Justice William Rehnquist renewed the debate over whether we should impose term limits on Supreme Court justices instead of allowing them to serve for life. At the time of his death, Chief Justice Rehnquist had served on the court for 33 years.

The proponents of term limits say they are necessary because jus-
tices are now staying on the court longer and retiring later, influencing the law much longer
than the founding fathers intended. Proponents also believe limiting terms and changing jus-
tices more often will make the appointments less political.

But the framers of our Constitution would likely disagree. They felt strongly that our democracy required an independent judiciary without influence from political and social pressures. Lifetime service allows justices to stay politically and socially independent and issue opinions based on the law. By definition, term limits would remove this protection. At the very least, justices might have to consider how the opinions they write might affect their prospects for future employment.

Instead, our system was designed—rather brilliantly—to provide for justices to take a long-term view of issues, rather than a short-term one. Many of the court’s most important opinions—for example, school desegregation and civil rights—were not politically or socially popular in the short term. Today, those opinions are almost universally accepted.

There is simply no guarantee the appointment of justices will become less political if they occur more often; in fact, the opposite may occur. The solution to the problems with our current process is not to increase the opportunities for political wrangling, but for presidents to appoint justices—and for Congress to confirm them—based on their ability to analyze and interpret the law and apply precedent, not on whether they agree with one’s stand on abortion, affirmative action or any other hot-button issue.

Rehnquist once said that life tenure has served our democracy and “ensured a commitment to the rule of law.” We should keep it that way. C

OCTOBER
DEBATE RESULTS:
Is the new
bankruptcy law fair?

NO YES 49% 51%

✁

from experts in the field:

Richard Davis is professor of political science at Brigham Young University and author of several books on American politics, including Electing Justice: Fixing the Supreme Court Nomination Process (Oxford, 2005).

As John Roberts, at the age of 50, begins his term as chief justice
of the United States, the nation potentially faces the longest tenure of a
chief justice since John Marshall, who served 34 years. Should someone
in that position be allowed to serve that long? Should checks and bal-
ances in government apply not just to institutions, but also to individuals?

One possible reform is a constitutional amendment limiting justices to a non renewable 18-year term. Eighteen years would be long enough to maintain independence for Supreme Court justices, but short enough to reduce the likelihood that a justice would serve past his or her ability to function.

An 18-year term would have these benefits:

First, it would ensure that we have fit justices. Several justices in poor health, such as William Rehnquist, Thurgood Marshall and William O. Douglas, have hung on past their prime and jeopardized the functioning of the court. Each served well beyond an 18-year period. Had they left the court after 18 years they would have avoided those years of poor health while attempting to serve on the court.

Second, we would have regular turnover on the court. The past 11 years have been one of the longest stretches without change on the court. Since no one knew when another vacancy would occur, that period has led to a lot of anxiety over future appointments and heightened the efforts of interest groups to affect the outcome of each new selection process. Term limits would make such turnover a common aspect of American politics and therefore minimize the importance placed on a vacancy when it occurs because another would soon follow.

Third, there would be no “claim” on public office. All public servants should realize that the sovereigns in a democratic society are the people. Philosophically, such a change would send the message that all public officials, including justices, serve for a set time defined by the society through the Constitution, rather than for as long as they wish. C

What do you think?
Should Supreme
Court justices
have life tenure?

■ YES ■ NO

Comments:

NAME

BUSINESS NAME

CITY/STATE/ZIP

E-MAIL

DATE

SIGNATURE

Fax to: (425) 313-6718

Mail to: Debate
The Costco Connection
P.O. Box 34088
Seattle, WA 98124-1088

E-mail to: debate@costco.com
(Be sure to include your
mailing address and phone
number in your e-mail message.)

Results in the next issue

Opinions expressed are those of the individuals or organizations represented and are presented to foster discussion. Costco and The Costco Connection take no position on any Debate topic.