As the world turns its attention to Saudi Arabia and watches a sprightly 79-year-old ascend the throne, it is time to reflect on the foolishness of gerontocracy not only abroad, but at home. I believe there is something deeply strange about the American judicial system, and specifically the Supreme Court of the United States. Though I have a deep respect for the Court as an institution of legal continuity and occasional moral clarity, the lifetime tenure system currently in practice is outdated, undemocratic, and thoroughly wacky. A variety of remedies for this problem have been employed at the state level, some of which are far worse than the disease, such as the terrible idea of judicial elections. A better approach to reforming the judiciary would follow the proposal of legal scholars Steven Calabresi and James Lindgren, who have argued for 18-year nonrenewable terms, staggered so that a vacancy would open at the court in every odd numbered year. With some slight modifications of my own that I’ll discuss, I think that this system is eminently sensible, even as much as getting it institutionalized is unlikely.
The main arguments for reforming the court in this direction are that it would be more democratic, and better incentivize presidents to pick quality justices. With regards to the first point, it is inherently unrepresentative of the popular will that a duly elected president such as Jimmy Carter should have no opportunities to appoint any members of the Supreme Court, whereas the equally situated George H.W. Bush, due solely to the vagaries of judicial health, appointed two. Though some would argue that one of the primary functions of the Supreme Court is to remain inert and above the flow of electoral politics, this system strikes me as a perversion of democracy because the American voting population certainly takes potential Supreme Court nominations into consideration when casting their vote. Look no further than the 2016 election, in which America will select a president who might replace three or more justices, potentially setting in motion a profound shift in American jurisprudence. The president is imbued with the power of judicial appointment, but and as the sole representative of the national electorate, this power thus ultimately belongs to the American people. Allowing some elected Presidents and not others to appoint judges is a circumvention of the popular will, and one that should be halted.
In terms of the argument for better-incentivizing presidents, it’s not hard to see that the life tenure system drives presidents to seek young justices. The longest legacy many presidents leave behind are their judicial appointments, something that they all know and strive for. Due to the nature of our political system, reliability in ideological terms is the foremost criterion, but age is only slightly behind that. It is unlikely that any future president will ever appoint a justice over the age of 60, simply because the natural course of the human lifespan would reduce that justice’s time on the court, and therefore his influence. But I would venture that there are many qualified and brilliant candidates above that age threshold who would be put into consideration by such a reform. The one change I would make to Calabresi and Lindgren’s proposal is to allow for the possibility of reappointment after the 18-year term is up. This can maintain some of the court’s institutional strength in the wake of reform. This idea also abounds with historical symmetry, allowing justices to potentially serve as long as Justice William O. Douglas, who still holds the record for longest-term ever, at 36 years.
Finally, I will also confess that I feel a vague sense of unease watching the composition of the august American judiciary be determined by the spectacle of physical decline. There is something unseemly about the composition of the highest court in the land potentially turning on the functionality of Justice Ginsberg’s 81-year-old pancreas.
Though I myself am of the camp that finds almost as much to fear in Scalia law as in Sharia law, I don’t believe that this would be a partisan adjustment at all. Instead, it would remove the ugly but real hopes of liberals and conservatives, rarely expressed publicly, that the other side’s judicial bench suddenly suffers a freak calamity during the right presidential moment. This proposed reform would therefore be an adjustment in the direction of a better functioning-democracy, one wherein the people’s will, however muffled, has some reasonable expectation of fulfillment. Unlikely as the change may seem, we should at least ask ourselves if the long-standing arrangement makes any contemporary sense. If not, then perhaps its finally time to curtail the court.
Jack Weller, a sophomore studying political science, is a staff writer at Stanford Political Journal.