SUPREMELY OUTDATED

The Supreme Court’s lifetime appointments are ineffective—and borderline autocratic

“It would be easier not to ‘politicize someone’s death’ if they didn’t hold a position with a lifetime appointment,” political analyst Nate Silver observed on Twitter earlier this month.

Silver was, obviously, talking about the death of Supreme Court justice Antonin Scalia. His unexpected passing in mid-February at the age of 79 kicked off a political firestorm, as leftist commenters cheered and rightwingers spun paranoid conspiracy theories. Scalia has long been the anchor of the conservative wing of the US Supreme Court. His death gives Obama a chance to appoint a much more liberal successor, and shift the court’s balance for what could be a generation. All federal judges are appointed for life. The implications of these lengthy tenures increase exponentially for the nine most important jurists in the land.

America’s Republicans, who currently control the Senate, are horrified at the prospect of a new Obama-appointed justice. News of Scalia’s death was barely confirmed when conservative lawmakers began lining up to say that they wouldn’t allow a vote on any Obama nominee. They demanded that a replacement wait until after the November presidential election. Meanwhile, Obama insists he has both the right and responsibility to appoint someone in a timely matter, setting the stage for a drawn out partisan battle. The politicizing of the court has only just begun. Ironically, life tenure was originally supposed to depoliticize the court. 

Ironically, life tenure was originally supposed to depoliticize the court, according to Artemus Ward, author of Deciding to Leave: The Politics of Retirement from the Supreme Court. “The thinking was that judges could only be truly independent if they were free from the political pressure experienced by other political officials,” Ward tells Quartz. Life tenure, as conceptualized in particular by Alexander Hamilton, was supposed to put judges above politics, and allow them to decide each case on its merits,rather than with an eye toward public sentiment or election results.

To some degree, lifetime appointments have been effective in this regard. Judges have mostly been free of partisan influence, to the frustration of presidents and lawmakers. Thomas Jefferson tried and failed to impeach his political enemy, Supreme Court justice Samuel Chase, in 1805. Over the past few centuries, there have been many other efforts to curtail Supreme Court tenures, all, according to Ward, motivated by political goals.

These efforts have varied in terms of success. Perhaps the most infamous incident was Franklin Delano Roosevelt’s 1937 court-packing plan, whereby the president proposed increasing the court size from 9 justices to 15, allowing him to appoint a majority and end court obstruction of New Deal legislation. The plan never passed, and its proposal damaged Roosevelt politically. But it did induce two court justices to stop opposing the administration—demonstrating that life tenure does not, after all, ensure complete insulation from politics.

In fact, life tenure can magnify political divisions. As lifespans have increased, justices are staying on the bench longer and longer. The first five Supreme Court justices served for about nine years each; Scalia served for 30.

 The first five Supreme Court justices served for about nine years each; Scalia served for 30. Presidents and senators know this—and so do the justices themselves. They can’t control their lifespans, but they can control their voluntary retirement plans. “[I]n modern times,” Ward tells Quartz, “federal judges have used the combination of life tenure, generous retirement benefits, and long lifespans to time their departures for partisan ends—specifically to depart under like-minded presidents, and if at all possible, Senate majorities.” Scalia admitted in 2012 that he hoped to be replaced by a like-minded justice. At the time of his death, he was trying to wait out Obama’s term before retiring, in the hopes that the next president would be a Republican.

According to Ward, scholarly consensus suggests an alternative of staggered, 18-year terms, allowing each president to nominate two justices every four years. Under this plan, each president would have the opportunity to leave his or her mark on the court, promoting democracy. Partisan stakes would also be reduced without the threat of a justice serving three decades. And, of course, vacancies could be timed so they would not occur in election years, preventing a replication of the current nomination impasse.

The problem is, Supreme Court cases have become so politically fraught that a procedural appointment change might not change very much. And political scientist and Bloomberg View contributor Jonathan Bernstein is less certain that curtailing life tenure would de-politicize the court. “I’m not convinced that scheduled nomination fights would be any less nasty than our current unscheduled version,” he tells Quartz. “The high stakes come from how important the court’s decisions are,” rather than from the length of the justice’s tenures.

  “Voters who elected Ronald Reagan in 1984 and US senators in 1986, 1984, and 1982 still have a large influence over our government in 2016.” Bernstein also worries that term limits could affect justices’ post-court activities in uncomfortable ways. They could attempt to become lobbyists, for example, which would create a public relations nightmare–not to mention potential conflicts of interest. “I fear unintended consequences,” Bernstein says, “especially for an institution which functions reasonably well right now, despite the confirmation fights.”

Interestingly, Bernstein says that one of the biggest arguments for term limits is that lifetime tenure has made the court too de-politicized. “The idea that the voters who elected Ronald Reagan in 1984 and US senators in 1986, 1984, and 1982 still have a large influence over our government in 2016 (because Justice Kennedy was nominated and confirmed) does strike me as something difficult to fit into democratic theory,” he tells Quartz.

Alexander Hamilton originally believed that activist judges could be subject to removal by the impeachment process. But in practice, no Supreme Court justice has ever been impeached or removed by political means. As a result, many judges are beholden not to the present electorate, but to the electorate of decades past. In other words, Americans, via the court, must live with the tyranny of their grandparents.

Imposing term limits is politically impossible for the foreseeable future, so it’s unlikely that the court will be more accountable anytime soon. Scalia’s death, though, means that the influence of the 1986 electorate will wane as contemporary voters are given a chance to weigh in on one of the country’s most important institutions.

The Supreme Court nomination fight will be long and painful. But sometimes democracy is a messy thing. The conclusion of Scalia’s tenure is a reminder to Americans of every political persuasion how much voting, and politics, matter.

You can follow Noah on Twitter at @hoodedu. We welcome your comments at ideas@qz.com.

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