"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…." – U.S. Constitution, Article III, Section 1
That seemed a good idea at the time. The Framers wanted to make the Supreme Court and lower federal courts independent of the political branches and insulate them from popular passions. What better way than to give them life tenure?
James Madison, Alexander Hamilton, and company had little occasion to ponder the possibility that one day most justices would serve longer than your average medieval monarch. The 10 who have retired since 1970 have averaged 25 years on the Court. And if 80-year-old Chief Justice William Rehnquist steps down soon, he will pull the average post-1982 retirement age down a bit.
By contrast, the first 10 justices served an average of under eight years, in part because of the rigors of the "riding circuit" that covered hundreds of miles on horseback. Three left to take other positions. Only two lived to age 70. The 90 justices who had completed their terms by 1970 retired (on average) after 15 years on the bench, at age 68.
Thus have modern medicine — and modern justices’ fondness for their power and glory — transformed the meaning of life tenure. This longevity has contributed to some serious problems, according to an ideologically diverse group of 45 leading legal scholars, several of whom are publishing law review articles on the subject. Earlier this year, these scholars agreed "in principle" on a proposal that seems especially timely now: staggered, 18-year term limits for all future justices, to marry judicial independence with more frequent and regular injections of new blood by the president and the Senate.
The problems associated with life tenure are subtle but serious:
