Should Supreme Court Justices Continue to Serve for Life?

Earlier this year, President Donald Trump nominated Neil M. ­Gorsuch to become a justice on the U.S. Supreme Court. (See JS, March 13, 2017.) The pick immediately set off a massive political fight with ­enormous stakes: Once approved by the Senate, Supreme Court ­justices serve for life or until they choose to step down, so their ­influence can last for decades. 

The standoff has reignited the debate about whether justices should instead be subject to term limits or mandatory retirement ages. 

People in favor of continuing life tenure say older justices bring decades of experience and wisdom to the job, and that it would be a mistake to force them to retire. ­Supporters also say that because Supreme Court justices don’t have to worry about being kicked off the bench for unpopular rulings, they’re free to make impartial ­decisions based solely on the law.

But many other people disagree with lifetime appointments. Critics say life tenure allows justices to stay on the job well into old age, when their minds may not be as sharp as they once were. Opponents also point to a 2015 poll that found that two-thirds of Americans favor 10-year term limits. 

Should Supreme Court justices continue to serve for life? Two experts weigh in.

Since 1787, the Constitution has granted Supreme Court justices and most federal judges the right to hold their offices until they die or choose to retire. Stripping life tenure would “fix” a nonexistent problem.  

There’s no evidence that justices need to be forced to retire. Many of our greatest justices have served honorably on the Court well into old age. For example, John Paul Stevens was 90 when he retired in 2010 after 35 years on the Supreme Court. The argument that old people make bad judges is a form of age discrimination.

Life tenure is one of the most important guarantees in the Constitution of an independent judiciary.* It is life tenure that allows judges to interpret the law free from the day-to-day political pressures that the executive and legislative branches of government face. Those pressures can cause the president and Congress to sometimes fail to see—or choose to ignore—the bigger, long-term picture in some issues, including civil rights.

Furthermore, abolishing life tenure for Supreme Court justices would require a constitutional amendment. This would be a time-consuming and costly process. It would also distract us from the many real problems facing our society. 

Such an amendment would also set a dangerous precedent for more-serious threats to our indepen­dent judiciary. For example, it might make it easier for politicians to fire state and local judges when they issue unpopular rulings.

When it comes to the life tenure of Supreme Court justices, our Constitution is working just fine. It would be foolish to tamper with it. 

—Neil Richards
Professor of law, Washington University School of Law, Missouri 

*An independent judiciary means judges aren't subject to pressure or influence from the president, lawmakers, private citizens, or corporations. Instead, they're free to make decisions based solely on the law.

We often say that Supreme Court justices have “life tenure.” But that’s just how we’ve interpreted the Constitution, which actually says that justices can hold their offices as long as they maintain “good behavior.” This language suggests that justices should retire when they’re no longer fit to work full-time. 

Supreme Court justices have more influence on our society than almost anyone else. Virtually all other judges in the world are subject to term limits or age limits. Speaking from my own experience, I question the wisdom of letting justices in their 70s and 80s continue to exercise such great power. I am 85 years old, and I know that my own mental faculties aren’t as sharp as they used to be. 

Historically, some justices who were seriously unfit held on to their power for far too long. Former Chief Justice William Rehnquist continued deciding key cases in 2005 as he was in the hospital dying of cancer. Justice Antonin Scalia had long suffered from a number of serious medical problems, including heart disease and diabetes. Despite those issues, he had declared at age 77—two years before his death—that he would not retire as long as there was a president who he thought would nominate a more liberal justice as his replacement. 

It’s time for Congress to address this problem. We already have a judicial process by which aged and disabled federal judges can be placed on “senior status,” which is a form of retirement. Judges who qualify for senior status no longer keep their seats on a particular court but continue to hear a reduced number of cases on an as-needed basis. Congress should extend that process to Supreme Court justices.   

—Paul D. Carrington
Retired professor of law, Duke University School of Law, North Carolina