Federal judges, including Supreme Court justices, are appointed for life under Article III of the U.S. Constitution. This lifetime tenure means they “hold their Offices during good Behaviour,”[1] providing a form of judicial independence that has long been regarded as a safeguard for democracy. But does the reasoning behind life tenure truly outweigh the concerns and challenges that have surfaced over time?

The Rationale Behind Lifetime Appointments

Although the Constitution does not explicitly mandate permanent tenure, the interpretation that its language implies life tenure is far from a new perspective. Alexander Hamilton, during the drafting era, championed lifetime tenure as essential for judicial independence, arguing that the judiciary’s lack of military or financial power made it the least threatening branch.[2] Although Thomas Jefferson later changed his stance, the Federalists continued to support life tenure to safeguard judicial independence.[3] Despite critics’ doubts about whether life tenure truly enhances judicial independence[4], the prevailing rationale today is that this system “insulates [federal judges] from the temporary passions of the public, and allows them to apply the law with only justice in mind, and not electoral or political concerns.”[5]

Ethical Concerns and Challenges

Rising Partisanship

In recent years, the Supreme Court has faced increasing accusations of partisanship. Some observers contend that the Court is becoming more polarized, reflecting the partisan divide in the U.S. political system.[6] Additionally, scholars emphasize the concern that justices strategically plan their retirements to ensure that their successors share similar ideological views.[7] While it’s difficult to determine how frequently or to what extent this influences justices’ retirement decisions—and justices seldom disclose such motives—evidence suggests that many have timed their retirements by either delaying or advancing their departure.[8] This issue isn’t limited to the Supreme Court; some critics have observed that Article III judges also time their retirements to align with their political party’s strength in Washington D.C., further politicizing the ostensibly non-partisan appointment process.[9]

Further, even if we were to assume that justices were to resign for personal reasons, the current system still gives presidents disproportionate power to shape the Supreme Court. This occurs largely by chance, as we’ve seen President Nixon make four appointments within five years, while President Carter made none during his term.[10] All this has led to concerns that the judiciary is no longer a neutral arbiter of the law but rather an extension of the political battleground, with lifetime appointments exacerbating this issue. As justices align with ideological camps, the judiciary risks losing public confidence in its impartiality.

Issues of Cognitive Aging

Many scholars have expressed their concern about the cognitive aging of judges, especially when judges in the modern era serve a lot longer than in the past.[11] For instance, while the average retirement age of federal judges in the 1950s and 1960s hovered around 70, since the early 2000s, many judges have extended their service well into their 80s.[12] While more research is needed to fully understand the effects of cognitive aging on judicial performance,[13] scholars, drawing from recent neuroscience theories, suggest that aging may impair critical skills such as processing speed, executive functioning, and reasoning.[14] These changes could manifest in slower decision-making and a greater reliance on cognitive shortcuts, potentially hindering a judge’s ability to effectively fulfill their judicial duties.[15]

Another article highlights the potential senility and dementia concerns surrounding life tenure for federal judges. It illustrates Judge Richard Owen’s case, where at 84, he showed signs of cognitive decline by struggling to understand the concept of email, despite it being central to cases he had previously handled.[16] Owen’s situation underscores the broader issue of aging judges, especially given the lack of a formal system to assess their cognitive fitness, leaving the judiciary dependent on “other judges to monitor colleagues, and, working discreetly behind the scenes, to push out enfeebled judges gently” to manage age-related decline.[17]

Proposed Reforms

One of the most popular reform proposals is the introduction of term limits for Supreme Court justices. Advocates suggest an eighteen-year term limit, with a new justice appointed every two years.[18] At the end of their term, justices could choose to continue serving as fully compensated federal judges in senior status, as all retired Supreme Court justices currently do.[19] Advocates contend that this reform could enhance the Court’s alignment with public values and reduce political tension in the confirmation process by making each nomination lower stakes. They further highlight that regularized appointments would also ensure continuity during unexpected vacancies and prevent any justice from wielding extensive power over decades.[20]

Conclusion

Lifetime appointments for federal judges, while intended to preserve judicial independence, bring with them challenges that question the impartiality and effectiveness of the judiciary. Although the path to implementing such reforms is complex, term limits or other reforms could offer a balanced solution, promoting both judicial accountability and a refreshed alignment with evolving public values, without sacrificing the integrity of the judicial system

 

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[1]  U.S. Const. art. III, § 1.

[2]  Michael J. Mazza, A New Look at an Old Debate: Life Tenure and the Article III Judge, 39 Gonz. L. Rev. 131, 135 (2003).

[3]  Id. at 136.

[4]  See Abhinav Chandrachud, Does Life Tenure Make Judges More Independent? A Comparative Study of Judicial Appointments in India, 28 Conn. J. Int’l L. 297 (2013).

[5]  The White House, The Judicial Branch,

https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch/ [https://perma.cc/K4FE-7PAM] (last visited Oct. 30, 2024).

[6]  Philip D. Oliver, Assessing and Addressing the Problems Causes by Life Tenure on the Supreme Court, 13 J. App. Prac. & Process 11, 15–16 (2012).

[7]  Id. at 16–19.

[8]  Id. at 17–18.

[9]  Mazza, supra note 2, at 132.

[10]  Oliver, supra note 6, at 19–20.

[11]  Ryan C. Black, Ryan J. Owens & Patrick C. Wohlfarth, The Effects of Lifetime Tenure and Aging in the United States Federal Judiciary 2 (2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4555766.

[12]  Id.

[13]  Id. at 4.

[14]  Id. at 5–9.

[15]  Id. at. 9–11.

[16]  Joseph Goldstein, Life Tenure for Federal Judges Raises Issues of Senility, Dementia, ProPublica (Jan. 18, 2011, 7:30 AM), https://www.propublica.org/article/life-tenure-for-federal-judges-raises-issues-of-senility-dementia [https://perma.cc/77WT-VUVX].

[17]  Id.

[18]  Maggie J. Buchanan, The Need for Supreme Court Term Limits, American Progress (Aug. 3, 2020), https://www.americanprogress.org/article/need-supreme-court-term-limits/ [https://perma.cc/8J87-MKLN].

[19]  Id.

[20]  Alicia Bannon & Michael Milov-Cordoba, Supreme Court Term Limits, Brennan Ctr. for Just. (June 20, 2023), https://www.brennancenter.org/our-work/policy-solutions/supreme-court-term-limits [https://perma.cc/L7XK-TMQ8].