Law Conference Examines Life Tenure for Supreme Court Justices

A proposal to limit Supreme Court terms while preserving lifetime appointments to the federal judiciary will be among ideas examined

The question of whether Supreme Court justices should serve for life is the central issue to be considered during a conference at Duke Law School April 9.

The conference -- titled "Reforming the Supreme Court?" -- is free and open to the public and the media. It is sponsored by the law school's Program in Public Law.

Two morning panel discussions will explore the consequences of granting life tenure to Supreme Court appointees, and whether or not this is problematic. The afternoon sessions will take up possible alternatives, such as age or term limits, and methods of affecting change through constitutional or statutory amendment.

Under the U.S. Constitution, justices are appointed to serve during "good behavior." According to Duke Law Professor Paul Carrington, the Founding Fathers intended that phrase to secure the independence of federal judges from undue political influence, yet over time it has been assumed to mean life tenure. The Founders likely never contemplated the improvements in health care that have substantially increased longevity, or the strong staff support that helps reduce workloads for aging justices, he said. Retirement is frequently an unattractive option; as a result, justices stay on the bench far too long, Carrington said.

"Presidents cannot know what will happen to their appointees after they go to work in a 'temple' for a few years, or how they will react to the issues presented to them many years down the road," said Carrington, adding that as the opportunities for presidential appointments decrease, the ideological bent of judicial candidates has come to play too great a role in presidential elections.

Carrington organized the conference with Professor Roger Cramton of Cornell Law School. The two have co-authored a statutory scheme to limit Supreme Court terms, while preserving lifetime appointments to the federal judiciary. Their draft "Supreme Court Renewal Act of 2005" will be among the proposals examined during the conference.

"Over 40 years of friendship, Roger Cramton and I have agreed on very few political issues," said Carrington, describing himself as an anti-federalist and Crampton as a federalist. "We are advancing this scheme because we share the view that the iconization of the Supreme Court has contributed much to the deep divide our nation is now experiencing.

"We think that a renewal of the Supreme Court in the manner proposed might help not only to make the court an institution more aware of its limits as a mere gathering of mortal humans, but might help a little to bridge the divide."

More information on "Reforming the Supreme Court?" can be found here.