Conversations with Great Thinkers

Should Supreme Court Justices Serve Until Death Do Us Part?

• Jim Lanshe • Season 1 • Episode 5

Share episode

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

Speaker 1:

Welcome back to Restoring Justice, a special series from Conversations with Great Thinkers. I'm Jim Lanchi, your host, and every week we delve into the evolving landscape of the American judiciary, including its triumphs, its trials and the path forward. In our previous episode, we explored the increasing politicization of the courts and the erosion of judicial neutrality. Today, we turn our attention to a foundational aspect of our judiciary, namely lifetime appointments. This tradition is enshrined in the US Constitution and was designed to protect judicial independence, but in our current climate, one has to ask is it fostering accountability or entrenching partisanship? Recent events raise many questions with regard to the latter. So let's take a look at the Constitutional Foundation for Lifetime Appointments.

Speaker 1:

In Article 3 of the US Constitution, it states that federal judges shall quote hold their offices during good behavior. Close quote, a phrase historically interpreted to grant lifetime tenure. The intent was clear to shield judges from political pressures, allowing them to make decisions based solely on the law. However, in practice, this has led to several very obvious problems. First of all, we have judges serving well into their 80s and 90s. Secondly, we find judges are retiring strategically in order to align their retirement with political shifts. And thirdly, justices holding office for decades influence multiple generations influence multiple generations. So the question arises is this enduring tenure promoting stability or is it hindering adaptability and accountability?

Speaker 1:

When the Constitution was drafted back in 1787, the average life expectancy was around 40 years. Today it is significantly higher, and so is the average tenure of Supreme Court justices. In the 19th century, justices served an average of 15 years. In recent times, however, 10 years of 30 and even 35 years are common. For example, justice Clarence Thomas was appointed in 1991, and he's now in his 34th year on the bench. This longevity means that a single appointment can influence legal interpretations for generations, often beyond the societal context in which the justice was first appointed.

Speaker 1:

So the implications of lifetime tenure are multifaceted, but among them are this concept of strategic retirements, meaning justices may time their retirements to coincide with politically favorable administrations, thereby ensuring their replacement aligns with their ideological leanings, and this strategy can undermine the apolitical nature of the judiciary. Another is the intensified confirmation battles, with each appointment potentially shaping the court for decades. As we've pointed out above, confirmation processes have become highly, highly politicized, focusing more on ideological alignment than on qualifications. And lastly, there's the whole notion of resistance to societal evolution and whether or not we even want our courts to be involved with societal evolution versus the rule of law. The current situation highlights the question of whether the court should evolve along with societal evolution. Long tenures obviously can result in a judiciary that is out of sync with contemporary societal values, leading to decisions that may not reflect the current norms or understanding. However, that begs the very fundamental question of how do we understand the meaning of the rule of law in the first instance if it is evolving as the society in which it functions continues to change and evolve.

Speaker 1:

So recent events have highlighted the judiciary's role in checking executive overreach. Specifically, there have been questions with regard to whether or not we're seeing executive branch overreach or whether we're seeing activist courts intruding on the legitimate Article II powers of the president courts intruding on the legitimate Article II powers of the President. One example in particular stands out with regard to the President's immigration policy. Federal courts have blocked several of President Trump's immigration initiatives, including attempts to revoke temporary protected status for certain groups and to expedite deportations without due process. These instances of judicial activism underscore and raise questions critical as to whether or not the courts are acting legitimately and upholding constitutional protections, or whether they are again involved in judicial overreach. Regardless of one's position on these issues.

Speaker 1:

There is now a discussion about the case, if not the need, for term limits. Given the challenges posed by lifetime appointments, many scholars and policymakers now advocate for term limits. For example, one suggestion would recommend 18-year staggered terms for Supreme Court justices, and these proposals suggest that the justices serve fixed terms with appointments occurring at regular intervals, thereby reducing the stakes involved in each nomination. Another suggestion is for post-term roles, meaning that, after their terms expire, the justices could continue to serve in lower courts or take on advisory roles, thereby preserving their expertise within the judiciary. The obvious aim of such proposals is to provide balance judicial independence with accountability and adaptability.

Speaker 1:

There are obviously counter-arguments to what I've just said with regard to reform. First is the fact that implementing term limits may require amending the Constitution, which is a very, very complex and challenging process. The second is that regular appointments could lead to increased, not decreased, political maneuvering. However, proponents argue that structured term limits could depoliticize the appointment process by making it more predictable and less contentious. So, in conclusion, lifetime appointments were intended initially as a safeguard providing judicial independence, yet in today's polarized environment, they may contribute to the very partisanship they were meant to prevent. Re-evaluating this tradition could lead to a judiciary that better reflects contemporary society, maintains its independence and upholds the principles of justice and fairness.

Speaker 1:

Thank you for joining us for this episode of Restoring Justice. If you found this discussion insightful, please subscribe, leave a review and share it with others interested in the future of our judiciary. For more episodes, transcripts and resources, visit our website at great-thinkerscom. In our next episode, we'll explore how and why the Supreme Court overturns its own precedents, examining cases like Brown v Board of Education, the Dobbs decision and the Chevron decision, which has handed down within the last year. Until then, stay curious, stay principled and keep thinking critically. No-transcript.