The Facile Explanation Is That Average Life Expectancy Was 35 When The Constitution Was Written So It Didn’t Really Matter
That’s the assertion in this editorial in the New York Times. And while it’s true the First Supreme Court Justices ended up serving an average of 9 years compared to an average of about 25 years these days, we figured there had to be more to it than that.
Also, we think looking at life expectancy for “free white males” in 1787 is at least a bit skewed by a couple of factors:
- The U.S. was coming out of a major war, the American Revolution, in which 1 out of every 20 free white Americans had just died.
- The infant and childhood mortality rate was extremely high. There aren’t real good numbers on this, but as late as 1850, according to the U.S. Census Department, about 1 in 8 babies born in Massachusetts died in their first year. That’s a lot. And that’s 70 years after the Constitution was written: so one might reasonably assume in 1787, in all states, it was even worse.
Once you got through wars or past childhood your odds vastly improved. Especially if you were a wealthy “white adult male of property“, which virtually everybody in the federal government was at the time. John Adams, for instance, lived to 90, James Madison 85, Benjamin Franklin 84, Thomas Jefferson 83.
So we decided to poke around a bit for better explanations.
• First we went to University of Texas Law Professor Steve Vladeck. This was his response to us:
“If judges served for fixed terms, there was a concern that they’d need a job [when] their term was over and would therefore be subject to political pressure while on the bench. Life tenure was to ameliorate that concern.”
• Then we found our way to Federalist #78, written by Alexander Hamilton. (He died before he was 50 because he was killed in a duel).
In it, Hamilton argues that:
“All judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
(He capitalizes for emphasis too!) Hamilton then concludes:
“Nothing can contribute so much to [the Judiciary’s] firmness and independence as permanency in office.”
Firmness, yes. But independence? It’s not really working out that way these days.
Because of that, we found a number of people out there preaching limited terms for Supreme Court Justices of something like 18 years. Staggered: so a Justice would be forced to retire and a new one come in every 2 years. So, each 2-term President would nominate a minimum of four Justices, in effect giving each President in that position the opportunity to flip the court.
That might solve a couple of problems:
- It would eliminate an emphasis on finding the youngest Justice out there vs. the most qualified.
- Since the same party usually doesn’t win more than 2 Presidential elections in a row, It’d make it more likely a Conservative President would come into office with a Liberal Supreme Court and vice-versa. Which might help the court better maintain checks and balances.
At the same time, we can also it see creating its own set of nightmares. For instance, how would it start? Who would be required to retire first? Would current Justices be “grandfathered”? Or would the oldest Justices be required to leave (in which case 2 Liberal Justices would be the first to go)? And 18 year term limits would not prevent Justices from resigning (or dying). So what if a Conservative (or Liberal) Justice, say, decides to resign a year or two early, so they can guarantee a Conservative (or Liberal) President will name their successor? Does the next Justice due to resign then get a pass for 2 years? Or does that give the President potentially even more influence over the Court? The more you think about it, the more that system seems to be way less of a good idea than it seems on the face of it. Is it still an improvement over the way things are today? Hard to tell. And we’ll probably never find out since it’d require a Constitutional Amendment to happen.
In general, the Founding Fathers weren’t big on term limits. They really only did it for the President so nobody could become king. Senators and Members of Congress are not term-limited, though they have to run for re-election every so often, so their status is more fragile.
