No more 'life tenure' for justices

Out There

April 07, 2009|By Paul D. Carrington

It is often said that Supreme Court justices have "life tenure" - a term used elsewhere to describe royalty. Our justices serve as long as they like - regardless of infirmity, fatigue or diminished ability. Moreover, the court has evolved into a "super legislature" where justices interpret laws to reflect their political preferences, with little regard for the expressed intent of Congress.

Our Supreme Court is in serious need of reform.

First, if a designated panel of senior appellate judges discerns that a justice is disabled, he or she should be given the choice of retiring at full pay or facing a public hearing on the issue.Second, Congress should encourage or require justices to accept senior status with reduced power and responsibility after a prolonged period of service, regardless of their physical and mental health. This would allow the president and Congress to appoint new justices with greater regularity and diminish, at least marginally, popular concern about the politics of nominees.

Third, Congress should limit the service of a justice as chief to seven years. That way, the performance of that executive office is subject to a measure of accountability to the president and Senate.

Fourth, litigants seeking the court's attention should have their petitions reviewed by a panel of veteran federal appellate judges who would certify 100 cases each year for the court to decide. The justices and their young law clerks would remain free to choose additional cases.

Speculation on judicial retirements should not distract us from the reality that justices are holding office for too long and have acquired too much discretion and political power.

Paul D. Carrington is a professor at Duke University Law School.

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