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Wednesday, July 06, 2005

Limit Supreme Court Justice Tenures

Why are Supreme Court appointments so important? Because the lifetime tenure means the justice will have power on key issues for many years to come. Many suggest that lifetime tenure be abolished. When lifetime tenure was first instituted, as explained by Alexander Hamilton in the Federalist papers, it was intended to insulate justices from political heat. However, the tenures were short due to life expectancies in the 18th century being no greater than 30 years of age (this is world-wide, includes infant-mortality, and certainly the wealth and likely good health of the potential justices meant their lives would be longer). An appointee who was 40 would decide cases for no more than a decade.

Bruce Bartlett explains the current tenure statistics:

[T]enure on the court has increased over time and turnover has fallen. According to Northwestern University law professors Steven Calabresi and James Lindgren, since 1971 the average tenure in office for a justice has increased from 12.2 years (1941-1970) to 25.6 years. The average age of a justice upon leaving office has risen from 67.6 years to 78.8 years between the same periods. And the average number of years between appointments to the court has almost doubled from one every 1.67 years to one every 3.27 years. The current makeup of the court is one of the longest in history, lasting more than 10 years, since the appointment of Justice Stephen Breyer in 1994.

Let's allow the electorate to decide who are the members of the SCOTUS by giving Presidents a chance at making some appointments during their terms. Fresh minds can reduce the personal policy-making incentive we are seeing with lifetime justices.

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