delanceyplace.com 5/25/10 - the supreme court

In today's excerpt - the framers of the U.S. Constitution decided that Supreme Court Justices "shall hold their Offices during good Behaviour," meaning they should have life tenure. Alexander Hamilton, for one, thought this should be true in part because he felt the Justices would find it hard to make a living if forced to retire early:

"The prospect of a bench filled with elderly judges who occasionally nodded off during cases or forgot basic facts didn't seem to worry Hamilton in Federalist Paper 79. He wrote:

" 'The constitution of New-York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present, who do not disapprove of this provision. There is no station in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period, in men who survive it; and when in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity, than is to be found in the imaginary danger of a superannuated bench.'

"More than two hundred years later, a debate is growing over the wisdom of life tenure. Writing in the Wall Street Journal, two law professors, Steven G. Calabresi and James Lindgren, called the Supreme Court 'a gerontocracy - like the leadership cadre of the Chinese Communist Party.' Between 1789 and 1970, they reported, 'Justices served an average of 14.9 years. Those who have stepped down since 1970, however, have served an average of 25.6 years.' They said that the 'typical one-term president now gets to appoint only one instead of two justices, and with the recent 11-year drought of vacancies a two-term presidency could in theory go by without being able to make even a single Supreme Court appointment.' They called such a situation 'unacceptable,' arguing: 'No powerful government institution in a modern democracy should go for 11 years without any democratic check on its membership. Nor should powerful officials hold office for an average of 25.6 years with some of them serving for 35 years or more.' They called the tenure rule 'a relic of the 18th centurv and of pre-democratic times.'

"Akhil Amar notes in America's Constitution: A Biography: 'Neither of America's first two chief justices served for life or anything close to it. Instead, John Jay left the bench after six years to become governor of New York, and Oliver Ellsworth quit after four and a half years ... together these two chiefs spent only ten years on the Court and lived for some forty years thereafter.' "

Author: Seth Lipsky

Title: The Citizen's Constitution

Publisher: Basic Books

Date: Copyright 2009 by Seth Lipsky

Pages: 154-155