NCPA - National Center for Policy Analysis


January 16, 2006

The life tenure granted to justices by the Constitution has suddenly come under critical scrutiny because it has added to the rancor of recent battles over appointments to the U.S. Supreme Court, says Fred Graham, chairman of Court TV's editorial board.

When the Constitution was being drafted, it seemed to make sense to protect the independence of all federal judges by giving them life tenure. Almost no other government, however, goes that far. Only Rhode Island appoints state Supreme Court justices for life, and every other major democratic nation has age or term limits for judges.

For the first 180 years under the U.S. Constitution, life tenure for Supreme Court justices created few problems. But two changes in the country have made lifetime appointments an anachronism. One is the increasing life expectancy of Americans; the other is the vastly expanded power that the justices wield.

  • From 1789, the year the Supreme Court was created, to 1970, the average justice served 15 years and retired at 68.
  • Since 1970, though, the average tenure has climbed to more than 25 years, and the average age at retirement or death to almost 80.
  • As the justices have hung on longer, incidents of decrepitude have increased; Chief Justice William Rehnquist was unable to show up for several court arguments before his death at age 80.

The longer tenures have come at a time when the court has been exerting expanded power over multiple areas of American life, says Graham. The increased power tends to entice the justices to stay on and limits the president's ability to reshape the court through new appointments.

Despite the occasional benefits of life tenure, a growing number of legal scholars are calling for some changes.

Source: Fred Graham, "In need of review: life tenure on the U.S. Supreme Court," USA Today, January 16, 2006.


Browse more articles on Government Issues