Roger C. Cramton, R.S. Stevens Professor of Law Emeritus at Cornell Law School, has co-authored a proposal that offers to constitutionally change the life appointments held by the Supreme Court Justices of the U.S. judiciary system. Prof. Paul D. Carrington, law, Duke University, co-wrote the plan referred to as "The Supreme Court Renewal Act of 2005."
The proposal suggests that Supreme Court Justices, once appointed by the President and confirmed by the Senate, can serve on the highest court for 18 years, after which time they become "senior justices of the United States Supreme Court" and are cycled out of serving the highest court. As senior justices, they are given seats to occupy in other federal courts until their death, retirement or removal for misconduct.
This proposal directly addresses some of the emerging problems in the Supreme Court appointment process as discussed in public debate around the country. The increasing lengthening of service on the Court, due to longer life expectancy, is one of the larger problems that the proposal attempts to solve. It states that the average tenure in office was historically 16 years, but recently has increased to over 25 years; the average age upon leaving office has increased from 70 to 79 years of age. It also states that historically a new appointment was made every 2.1 years, but the current nine Justices have served together for more than ten years.
"There is a problem of justices hanging on too long...and it's going to be a problem in the foreseeable future," said Prof. Kevin M. Clermont, J. & M. Flanagan Professor of Law. He added that justices could eventually be too old to serve, and out of touch with the times. Clermont is one of many professors around the country who have signed on to support this proposal in principle.
The proposal also attempts to solve many other issues including disproportionate opportunities for "individual Justices and Presidents to manipulate current arrangements to perpetuate their own predilections," among others. It would, the proposal states, "substantially reduce two current problems: the incentive of a President to appoint young nominees to the Court who, it is hoped, will perpetuate the President's policy preferences for a generation or more and the efforts of individual justices to increase the likelihood of a similarly inclined justice being appointed in their stead by timing resignation either before or after a particular presidential election."
If implemented, this proposal would allow each president to appoint two justices during each four-year presidential term. If a vacancy occurs, senior justices may be recalled back to fill the seat until the time comes to confirm a new appointee. This proposal, however, is not retroactive and thus would only apply to new appointees.
Theodore J. Lowi, J.L. Senior Professor of American Institutions, said: "No reform is completely neutral ... somebody gains, somebody loses ... this is the closest thing I've seen to being neutral ... both [political] parties [are] taking the long term view that they'll have the reassurance ... [and] the opportunities to fill vacancies on the court. ... This is the best idea that I've seen in many years."
"The power and status of Supreme Court justices, combined with control of their own work, carries dangers of arrogance, hubris and abuse," the proposal states, emphasizing the "extraordinary authority" that the Court holds today. Furthermore, according to the proposal, justices on the court are "disinclined to retire" because, as Clermont put it, "their jobs are enjoyable; those people are worshiped. They hold phenomenal power ... and it's not hard work; they have strong staff support."
Clermont pointed out that in the 2003-2004 term, only 70 cases were heard by the Court, even though the Court assured Congress that it would decide on about 350 cases a year in 1925. An average of six hours a week is spent listening to oral arguments, though considerable time is spent in conference with other justices.
"We needed some way to take the pressure...off the president," Lowi added. "The opposing party can have at least the reassurance that no president will get more than two appointees during any four year term. [This] siphons off pressure of the concern that the president will have opportunities to alter deeply the composition of the court."
An additional feature of the statute is that it is entirely constitutional and can be implemented without calling for an amendment, which would be a lengthy and difficult process. The Constitution currently states that judges of the courts shall serve during "good behavior," which does not explicitly state that justices must serve as Supreme Court justice for their entire life appointment. Thus, as Clermont noted, the proposal in the form of statutory legislature still adheres to the Constitution and avoids the complicated procedure of adding an amendment.
If this proposal is then made into law, however, a small issue may eventually arise if this particular legislature comes before the courts.
"One question this [proposal] does not address is whether the federal courts will have jurisdiction to review the proposal's constitutionality. Assuming their jurisdiction can't be stripped ... [it] creates a dilemma. The high court is then reviewing the constitutionality of a legislature designed to curb their tenure," said Prof. Michael Heise, law.
According to Clermont, Cramton is requesting legislative hearings on the proposal to gauge not only its constitutionality but also what Congress thinks of the proposal itself. The proposal, Clermont observed, has gotten good reception by the media, in addition to having the endorsement of a few dozen law professors across the country.