While I don’t think Federal judges’ ‘life tenure’ terms should change (the trend right now is that Federal judges in general – are retiring more often (Amy, n.d.), I do think that the “we live a lot longer these days” argument is definitely a viable argument for changing up the tenure of Supreme Court Justices.
The purpose of “should hold their offices during good behavior” of Article III, § 1 was spelled out by Alexander Hamilton in The Federalist No. 78 under the pseudonym “PLUBIUS,” titled, “The Judiciary Department.”
“If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty” (Hamilton, 1788, p. 8).
I’m sure that somewhere, somehow, the argument has already been made that times were different when the language in the Constitution was being decided upon, but whether or not that that’s relevant, is canceled out by both increased life expectancy, which decreases the democratic influence of appointing Justices – and the average length of term is now twenty six years since 1970, before that, it was almost fifteen years (Calabresi and Lindgren, 2006). It’s not a secret that as we get older, we lose some of our mental faculty and the Supreme Court Justices are not the exception to the rule. They weren’t appointed by sitting United States President, then confirmed by the United States Senate based off of their diminished mental capacity as frail, infirm (very) senior citizens. Besides age and longevity in office canceling out pre-colonial versus the modern era etymology disparities, I’d would also think that they cancel out another scholarly argument I came across using the Ashford Library; the notion that the longer a justice stays on the bench, the more likely it is they will supplement their very own policy/philosophical preferences for the bent of politicians, which in turn equates to a lack of, the danger of accountability (Peppers and Oldfather, 2011). I think that would be the same as saying if they are able to knowingly supplement or substitute their own preferences with anyone, much less politicians, then they’re mentally capable – regardless of what their preferences are or influenced by. In short, I do agree with the idea that twenty six years is almost double and subverts the check of democracy; and I do agree with the idea that as we age, we lose the inherent intellective or ingrained potential of the mind.
Some proponents have even proposed an amendment to the Constitution’s Article III, § 1 – that calls for a staggered system with eighteen-year term limits, every two years at the end of the term in every odd-numbered calendar year. It would mean a one-term president would appoint two Justices and two term presidents, two justices. That particular proposal also stipulates that it should be phased in, that it would not apply to currently appointed Justices (Calabresi and Lindgren), which is what I would think, a more than fair compromise – and it’ll do well too recapture/reign in, what the founders had envisioned for the Article III judiciary.
– Vilifier of Zombies
Amy, K. (n.d). Passing the gavel: Judicial Retirements Leave Gaps In State, Federal Court Systems. Wisconsin Law Journal (Milwaukee, WI),
Calabresi, S. G., & Lindgren, J. (2006). Term Limits for the Supreme Court: Life Tenure Reconsidered. Harvard Journal Of Law & Public Policy, 29(3), 669-877.
Hamilton, A. (June, 14 1788) A View of the Constitution of the Judicial Department in Relation to the Tenure of Good Behavior. Independent Journal, p. 8.
Peppers, T. C., & Oldfather, C. M. (2011). Till Death Do Us Part: Chief Justices and the United States Supreme Court. Marquette Law Review, 95(2), 709-733.