Some among us are puzzled (and surely, some relieved) that the long-predicted resignations of Supreme Court Chief Justice William Rehnquist and/or Associate Justice John Paul Stevens somehow didn’t make the network news as anticipated on Monday. After all, like them or not, they are rather… mature: Rehnquist is 80 years young and battling thyroid cancer; Stephens as walked this good earth for nearly 85 years. Indeed, Justice Sandra Day O’Connor, God bless her soul, is brilliant but no spring chicken.

Stuart Taylor wrote a compelling piece in National Journal titled “Life Tenure Is Too Long For Supreme Court Justices” that probes this issue. (N.B.: pubished on Monday 27 June 2005; there is no permalink, so if this article is unavailable then it might be available via the National Journal archive.) Let’s take a quick gander at the U.S. Constitution, shall we:

Article. III.
Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

It was all good and fine, in fact clever, for the framers to have intended the courts to be insulated from political ebb and flow by refusing to term-limit the judiciary. But as Taylor and others have pointed out, the Founding Fathers simply could not have predicted that the human life span, through public health and medical advancement, would extend well beyond your atypical “three-score-and-ten.” The “good Behaviour” clause arguably didn’t anticipate that court appointments could average a quarter-century, as they have for the ten retirements since 1970. As Taylor notes:

By contrast, the first 10 justices served an average of under eight years, in part because of the rigors of the “riding circuit” that covered hundreds of miles on horseback. Three left to take other positions. Only two lived to age 70. The 90 justices who had completed their terms by 1970 retired (on average) after 15 years on the bench, at age 68.

The Founding Fathers seem not to have anticipated a time when turnover in the Supreme Court would slow to a crawl and justices would preside on the bench, in Taylor’s words, “longer than your average medieval monarch.” Taylor goes on to list several points he sees as serious concerns as regards lifetime juducial appointments. They include: Decreptitude; Intellectual Autopilot; Hubristic Complacency; Unaccountability; Randomness (an interesting one: Richard Nixon appointed four Supreme Court justices in his first term, while Jimmy Carter was shut out); and Uglier Confirmation Battles (since so much more is at stake for either side for any appointment). Taylor offers a few anecdotes for each of these and a few other examples of concern that perhaps were not thoroughly contemplated by the founders.

In his work “Democracy in America,” Alexis de Tocqueville seems to be at once impressed and concerned with the American judicial system and its power to declare unconstitutional the actions of the legislative branch. Impressive observer and critic of the American system as he was, one cannot blame de Toqueville, or the Founding Fathers, for not having gone one step further to envision the “life-term problem” and its potential ramifications in the 20th and 21st centuries. With adjudications of late such as the outrageous Kalo decision and the utterly arbitrary “Ten Commandments” rulings, I get serious heebie-jeebies thinking about the extended life expectancies of the SCOTUS Moonbat Five (Souter, Stevens, Bader Ginsburg, Kennedy, and Breyer) and the suave yet perplexing O’Connor — though God knows I would not wish ill on any of them.

I have been highly inclined to beat the originalist drum when it comes to interpretation of the Constitution by the Judiciary. But what about interpretation of the Judiciary itself? For all their stunning prescience on so many matters, perhaps the Founding Fathers weren’t weilding their crystal balls well in some instances. I do feel something that simply could not have been foreseen over two centuries ago, such as extended life spans through medical advancement, might deserve a fresh look. After all, the Constitution does have an amendment process, which was used to good effect for such oversights as rights for women and the horror of slavery.

The Supreme Court Renewal Act is a recent proposal made by legal scholars Paul Carrington (a Democrat and Professor of Law at Duke) and Roger Cramton (Republican, and Professor of Law at Cornell). This proposal was signed on to by a bipartisan list of over 40 legal scholars from across the country. I’m not sure how I feel about this proposal to term-limit Supreme Court justices to 18-years as suggested by these thinkers, but let’s at least start a national debate. As it stands, the system seems not to be working well for anyone.

Cross-posted at TMH’s Bacon Bits