Should Supreme Court Justices Serve Until Death Do Us Part?

The American judiciary stands at a crossroads, with lifetime appointments—a tradition older than the nation itself—facing unprecedented scrutiny. What happens when a constitutional feature designed for an era when Americans lived to 40 meets modern reality where justices regularly serve three decades or more?

Today we dive deep into this constitutional cornerstone, examining how a provision meant to ensure judicial independence might inadvertently be undermining it. The numbers tell a compelling story: Supreme Court justices in the 19th century served an average of 15 years, while modern justices routinely hold power for 30+ years. Justice Clarence Thomas, appointed in 1991, has now shaped American jurisprudence for 34 years—potentially influencing legal interpretations for multiple generations.

This longevity creates ripple effects throughout our constitutional system. Strategic retirements timed to coincide with politically favorable administrations transform judicial transitions into partisan calculations. Confirmation battles become increasingly bitter with each nominee representing a multi-decade investment in judicial philosophy. Most fundamentally, we confront essential questions about whether courts should evolve alongside society or remain anchored solely to constitutional text regardless of changing contexts.

Reform proposals like 18-year staggered terms offer potential solutions that might balance judicial independence with regular renewal, but implementing such changes faces significant hurdles. As our judiciary continues to play a central role in America's most divisive issues, from immigration policy to reproductive rights, the stakes of this debate couldn't be higher. Whether you believe lifetime appointments preserve essential judicial independence or entrench partisan ideology, this episode provides the historical context and contemporary perspectives needed to form your own informed opinion about the future of America's third branch.

Where do you stand on judicial term limits? Share your thoughts in the comments, and join us next week when we examine the Supreme Court's evolving approach to overturning its own precedents through landmark cases including Brown v. Board of Education, Dobbs, and the recent Chevron decision.

For more information about our podcasts, see our website at www.Great-Thinkers.com

Episode Transcript

Speaker 1 (00:10):
Welcome back to Restoring Justice, a special
series from Conversations withGreat Thinkers.
I'm Jim Lanchi, your host, andevery week we delve into the
evolving landscape of theAmerican judiciary, including
its triumphs, its trials and thepath forward.

(00:34):
In our previous episode, weexplored the increasing
politicization of the courts andthe erosion of judicial
neutrality.
Today, we turn our attention toa foundational aspect of our
judiciary, namely lifetimeappointments.
This tradition is enshrined inthe US Constitution and was
designed to protect judicialindependence, but in our current
climate, one has to ask is itfostering accountability or

(00:59):
entrenching partisanship?
Recent events raise manyquestions with regard to the
latter.
So let's take a look at theConstitutional Foundation for
Lifetime Appointments.
In Article 3 of the USConstitution, it states that
federal judges shall quote holdtheir offices during good

(01:20):
behavior.
Close quote, a phrasehistorically interpreted to
grant lifetime tenure.
The intent was clear to shieldjudges from political pressures,
allowing them to make decisionsbased solely on the law.
However, in practice, this hasled to several very obvious
problems.

(01:41):
First of all, we have judgesserving well into their 80s and
90s.
Secondly, we find judges areretiring strategically in order
to align their retirement withpolitical shifts.
And thirdly, justices holdingoffice for decades influence

(02:01):
multiple generations influencemultiple generations.
So the question arises is thisenduring tenure promoting
stability or is it hinderingadaptability and accountability?

(02:24):
When the Constitution wasdrafted back in 1787, the
average life expectancy wasaround 40 years.
Today it is significantlyhigher, and so is the average
tenure of Supreme Court justices.
In the 19th century, justicesserved an average of 15 years.

(02:46):
In recent times, however, 10years of 30 and even 35 years
are common.
For example, justice ClarenceThomas was appointed in 1991,
and he's now in his 34th year onthe bench.
This longevity means that asingle appointment can influence
legal interpretations forgenerations, often beyond the

(03:09):
societal context in which thejustice was first appointed.
So the implications of lifetimetenure are multifaceted, but
among them are this concept ofstrategic retirements, meaning
justices may time theirretirements to coincide with
politically favorableadministrations, thereby

(03:31):
ensuring their replacementaligns with their ideological
leanings, and this strategy canundermine the apolitical nature
of the judiciary.
Another is the intensifiedconfirmation battles, with each
appointment potentially shapingthe court for decades.
As we've pointed out above,confirmation processes have

(03:53):
become highly, highlypoliticized, focusing more on
ideological alignment than onqualifications.
And lastly, there's the wholenotion of resistance to societal
evolution and whether or not weeven want our courts to be
involved with societal evolutionversus the rule of law.
The current situationhighlights the question of

(04:16):
whether the court should evolvealong with societal evolution.
Long tenures obviously canresult in a judiciary that is
out of sync with contemporarysocietal values, leading to
decisions that may not reflectthe current norms or
understanding.
However, that begs the veryfundamental question of how do

(04:38):
we understand the meaning of therule of law in the first
instance if it is evolving asthe society in which it
functions continues to changeand evolve.
So recent events havehighlighted the judiciary's role
in checking executive overreach.
Specifically, there have beenquestions with regard to whether

(04:58):
or not we're seeing executivebranch overreach or whether
we're seeing activist courtsintruding on the legitimate
Article II powers of thepresident courts intruding on
the legitimate Article II powersof the President.
One example in particularstands out with regard to the
President's immigration policy.
Federal courts have blockedseveral of President Trump's

(05:24):
immigration initiatives,including attempts to revoke
temporary protected status forcertain groups and to expedite
deportations without due process.
These instances of judicialactivism underscore and raise
questions critical as to whetheror not the courts are acting

(05:44):
legitimately and upholdingconstitutional protections, or
whether they are again involvedin judicial overreach.
Regardless of one's position onthese issues.

(06:07):
There is now a discussion aboutthe case, if not the need, for
term limits.
Given the challenges posed bylifetime appointments, many
scholars and policymakers nowadvocate for term limits.
For example, one suggestionwould recommend 18-year
staggered terms for SupremeCourt justices, and these

(06:32):
proposals suggest that thejustices serve fixed terms with
appointments occurring atregular intervals, thereby
reducing the stakes involved ineach nomination.
Another suggestion is forpost-term roles, meaning that,
after their terms expire, thejustices could continue to serve
in lower courts or take onadvisory roles, thereby

(06:57):
preserving their expertisewithin the judiciary.
The obvious aim of suchproposals is to provide balance
judicial independence withaccountability and adaptability.
There are obviouslycounter-arguments to what I've
just said with regard to reform.

(07:18):
First is the fact thatimplementing term limits may
require amending theConstitution, which is a very,
very complex and challengingprocess.
The second is that regularappointments could lead to
increased, not decreased,political maneuvering.
However, proponents argue thatstructured term limits could

(07:42):
depoliticize the appointmentprocess by making it more
predictable and less contentious.
So, in conclusion, lifetimeappointments were intended
initially as a safeguardproviding judicial independence,
yet in today's polarizedenvironment, they may contribute

(08:03):
to the very partisanship theywere meant to prevent.
Re-evaluating this traditioncould lead to a judiciary that
better reflects contemporarysociety, maintains its
independence and upholds theprinciples of justice and
fairness.
Thank you for joining us forthis episode of Restoring

(08:24):
Justice.
If you found this discussioninsightful, please subscribe,
leave a review and share it withothers interested in the future
of our judiciary.
For more episodes, transcriptsand resources, visit our website
at great-thinkerscom.
In our next episode, we'llexplore how and why the Supreme

(08:47):
Court overturns its ownprecedents, examining cases like
Brown v Board of Education, theDobbs decision and the Chevron
decision, which has handed downwithin the last year.
Until then, stay curious, stayprincipled and keep thinking
critically.
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