First, the Judicial Service Commission draws up a list of candidates that must have three more names than the number of vacancies. The Commission does this after calling for nominations and holding public interviews. Then the President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, chooses the judges from this selection.
The first judges were appointed in For example, major cases challenging abortion rights and the promise of Roe v. Wade are regularly brought before the court. The holding in Planned Parenthood v. Casey rewrote the constitutional standard under which abortion restrictions are tested, and Gonzales v. Any new justice on the court will have an effect on how precedent is evaluated as well as how novel legal questions are decided. However, most modern presidents have appointed between two and four justices—with the most common number being two, regardless of if the president served for one or two terms.
Another concern is that term limits would give justices heightened political and financial incentives to set themselves up for their next job through their legal opinions before fully resigning from the bench.
The likelihood of this concern coming to fruition, then, depends on whether the individuals appointed under a term-limit scheme are likely to be more corrupt than current justices.
Currently, any federal judge or justice can at any time choose to fully resign or, once they meet certain requirements, enter into senior status. Full retirement from the bench allows a judge to return to practice law and generally act without any constraint on earnings or profession; from to , 80 former judges chose this path. Despite the fact that most justices have declined to do so, it is not out of the question that a term-limited justice would choose full retirement over senior status, which would come with at least some protections against such self-dealing.
But while it is possible that term-limited justices could choose full resignation for similar reasons, that is unlikely to be a significant reason for concern. For example, a person in their early- to mids—the current average age for newly appointed justices—would face the end of their term in their early 70s. For many, that may open the window for them to take on a new career after their term has ended. It is also worth noting that Supreme Court justices are already allowed to enjoy luxurious sponsored trips and teaching opportunities as well as own stock and have a variety of other potential conflicts of interest that could influence their rulings.
For example, the court once was unable to consider a case because it could not muster the needed quorum to do so as a result of too many justices having financial conflicts. Moreover, any term-limit proposal could be coupled with reforms to address these existing problems. Lifelong appointments for justices are resulting in increasingly longer terms, with significant implications for the politicization of the court. The nine individuals who sit on the Supreme Court hold incredible power over American life.
The author would like to thank Sam Berger and Danielle Root for their work on this topic. Federal legislators have the power to enact eighteen-year terms for Supreme Court justices.
The Constitution does not explicitly establish the type of judicial work done during a life term nor does it prevent Congress from enacting term limits. Supreme Court justices could transition at the end of their terms to the lower courts with undiminished salary for the remainder of their careers.
Justices would also have the option of transitioning to senior status. In the current system, retired Supreme Court justices automatically transition to senior status. Enacting eighteen-year terms for Supreme Court justices would go a long way toward depoliticizing the appointment process, yet for this remedy to be truly effective it would need to be paired with regular appointments: one Supreme Court justice nominated during each term of Congress.
With each president responsible for two nominations per term, the nomination process would become less partisan. Other Framers, though, thought that the federal government could not be effective unless it had courts to help enforce its laws.
If everything were left up to state courts, states that were hostile to the new federal government might thwart it at every turn. But the extent and shape of the rest of the federal court system—the degree to which the federal government would be present around the nation—would get hashed out in day-to-day politics. The result is the large and powerful federal judiciary we have today. They can decide cases according to what they think the law requires, without worrying about whether some powerful person—or even a majority of the people—will object.
And, as the provision says, Congress and the President cannot retaliate against judges by cutting their salaries. Most state court judges—unlike federal judges—are elected, not appointed; and some have to be re-elected, or approved by the voters, every few years. Very few people think that federal judges should be elected.
There are, though, some critics of lifetime tenure: those critics say that lifetime tenure causes judges to stay in their positions longer than they should—after they have become too old to do their job well, either just because of age or because they are out of touch with modern times.
Maybe, these critics say, judges should be appointed for a fixed term of years—say 14 or 18 years—with no chance of being reappointed. But a change like this would almost certainly require a constitutional amendment, and the chance of its happening is extremely small. Although the guarantee that judges will have lifetime tenure seems simple, it actually raises a difficult question in our system.
In the federal government, there are many officials who do judge-like things—think of military courts-martial, for example—but who do not have the lifetime tenure that Article III seems to require for federal judges. Many of these officials are members of, or work for, administrative agencies—what is sometimes called the federal bureaucracy.
Officials like this will rule on whether, for example, a company has used advertisements that deceive consumers, or a business has wrongly tried to prevent its workers from joining a union, or the government has not paid a person the disability benefits he or she is entitled to. These administrative officials usually serve only for a few years, after which the President can replace them.
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