NCPA - National Center for Policy Analysis


July 6, 2005

Growing numbers of legal scholars have concluded that life tenure for the Supreme Court should be abolished. They note that only the Rhode Island state supreme court has life tenure and no other democratic nation has it. In lieu of life tenure, they either limit terms to a fixed number of years -- as it is with the presidency -- or impose mandatory retirement at a certain age, says Bruce Bartlett, a senior fellow with the National Center for Policy Analysis.

The Founding Fathers quite rightly wanted to insulate the court from partisan politics and they thought that life tenure would achieve this purpose. Of course, they also saw no need to limit presidential terms. But Americans generally support the 8-year limit that was adopted in the 22nd amendment to the Constitution, and according to a 2004 poll, 60 percent say it is time to limit court terms as well.

  • Lately, something of a consensus has developed around a constitutional amendment that would limit justices to terms of 18 years, staggered so that there would in theory be an opening every two years.
  • This means that every president who serves a full term would likely have two appointments to the Supreme Court.

Elimination of life tenure, through this scheme or another, would greatly reduce the intensity of Supreme Court appointment battles because the stakes would not be so high. Both sides would know that if they failed this time around, they would probably have another chance within two years, says Bartlett.

If justices are prohibited from reappointment, there is no reason to believe that limiting them to 18 years, longer than most justices have served historically, will make them any more susceptible to political pressure than they are now, notes Bartlett.

Source: Bruce Bartlett, "Life Tenure and the Supreme Court," National Center for Policy Analysis, July 6, 2005.


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