Rumors are swirling that U.S. Supreme Court Justice Anthony Kennedy, the judge whose swing vote has preserved detente between the court’s left and right for a generation, may announce his retirement in the next year.
The mere idea that Kennedy’s seat could get filled by President Donald Trump and the Republican Senate has sent many on the left into a tailspin. In the 29 years Kennedy has served on the court, he has authored opinions or cast tiebreaking votes in cases that preserved a constitutional right to abortion, recognized social and sexual liberties for gays and lesbians, granted habeas corpus protections to Guantanamo Bay prisoners, and more.
To many liberals, Kennedy’s replacement with a strict originalist like Justice Neil Gorsuch would feel downright apocalyptic. Indeed, Sen. Orrin Hatch, R-Utah, told reporters in April that the battle to replace Kennedy will be “Armageddon.”
Liberals aren’t the only ones who get anxious over Supreme Court appointments, of course. When it seemed Antonin Scalia’s seat would go to Merrick Garland, which would have created a more liberal majority on the court, the Republican-led Senate refused to give Garland any hearings or votes for an unprecedented 293 days — until Obama was no longer president — a maneuver that led to bitter resentment and set a worrisome precedent for future vacancies. Meanwhile, some liberals are so worried about the health of Justice Ruth Bader Ginsburg, who is 84, that they’re sending her kale recipes. Things are clearly out of hand.
This level of speculation, fear and suspense over when any single public official retires is a sign that the stakes of Supreme Court appointments are simply too high. To lower the stakes — and attending dysfunction — of each court appointment, both parties would do well to consider a scheme put forward by two Northwestern University law professors.
In a 2006 paper for the Harvard Law Review, Steven Calabresi and James Lindgren proposed that Supreme Court justices should serve 18-year terms, with a new judge appointed every two years. Each president would in effect get to nominate two justices for every term in office, and the Senate would agree to promptly consider them on a regular schedule.
The sitting court would be composed of the nine most recent appointees. More-senior judges would continue receiving full pay and would sit as judges on lower federal appellate courts — or on the Supreme Court to fill a vacancy or a recusal. The plan has the advantage of potentially being achievable by statute, rather than requiring a constitutional amendment.
Of course, a justice might unexpectedly die, retire, resign or be impeached. But for the most part, Supreme Court appointments would become more routine. The public, the press and Congress would know what to expect and when.
With a new justice always around the corner and a built-in limit to the length of any one person’s influence, the Senate could more easily accept an opposing president’s nomination, breaking the tit-for-tat cycle of congressional partisanship that stalled the appointment of Garland.
Such a system would also eliminate the “tyranny of the young,” whereby presidents seek to appoint the youngest possible justices in a calculated effort to further their legacies for the greatest number of decades. Brilliant, innovative judges wouldn’t be sidestepped for being too old. The frequency of appointments might allow presidents to experiment a little, perhaps by appointing a trial judge or a politician. It might also encourage minority parties and interest groups to limit their cries of impending doom.
The benefits of life tenure for judges are clear. By eliminating the ability of political actors to remove judges, the Constitution frees judges to make decisions based on their honest understanding of law, rather than to protect their positions by pleasing a political patron.
But life expectancy today is a full 30 years greater than it was in 1789. In the country’s first 200 years, the average Supreme Court justice served for 15 years. Kennedy is creeping up on 30; Gorsuch, fit and 49, could serve for the next 35 years or more.
That’s a very long time for an unelected official to exercise such vast public authority.
Ben Feuer is chairman of the California Appellate Law Group. He wrote this article for the Los Angeles Times.