Nancy Gertner is a law professor and served as a federal judge.
We have the most powerful Supreme Court in the world. The justices have the last word on constitutional interpretation, and they face strikingly little accountability. Because appointments to the Court depend on the happenstance of when a justice dies or chooses to retire rather than a regular process, the nine justices wield extraordinary power for decades.
The U.S. Supreme Court stands alone among high courts in the universe of constitutional democracies in lacking either term limits or a mandatory retirement age. In fact, it stands virtually alone in our own country: 31 states and the District of Columbia have some form of mandatory retirement and almost all states establish terms for high court justices ranging from 6 to 14 years. One scholar who testified before the Presidential Commission on the Supreme Court of the United States, of which I was a member, opined that “were we writing the United States Constitution anew there is no way we would adopt the particular institutional structure that we have for judicial tenure. No other country has true lifetime tenure for its justices, and for good reason.”
There is no question that the U.S. Supreme Court must have term limits, a mandatory retirement age, or both. The only question is how to accomplish it.
Recent versions of Supreme Court reform call for justices to take “senior status” after 18 years of active service. Under this proposal, justices would serve in an active capacity for that time period, after which they would assume senior status. Senior justices would not leave judicial service entirely, but rather take on new duties, such as deciding original jurisdiction cases, hearing cases on circuit courts as needed, or filling in for recused justices.
This system is already in effect for the lower federal courts. A federal statute provides two options for federal judges approaching retirement, including Supreme Court justices who meet the requirement. A judge may choose to retire from the office entirely (as I have done), at which point they no longer hold the office of federal judge or justice but continue to be paid an annuity equal to their salary at the time of their retirement. Or they may retain the office but retire from regular active service, receive the same salary, and participate in judicial duties to the extent they choose. In many jurisdictions, he or she could keep the same office and have the same number of clerks.
Initially, senior status was available to judges who had reached the age of 70 and had served on their courts for at least 10 years. In 1984, Congress modified this standard in favor of the so-called rule of 80. Under this rule, judges may assume senior status at age 65 provided they have served at least 15 years on the bench.
It is hard to underestimate the value of senior judges in keeping the work of the federal courts up to date. In the District of Massachusetts, for example, the majority of the senior judges continue to have an active criminal and civil docket, presiding at trials, issuing opinions, and conducting mediations. I chose not to take this route, principally because I wanted to speak without the constraints of the judicial role, as well as write and teach.
Under the senior justice approach, Supreme Court justices would be obligated to retire from active service on the high court, though they could be designated to sit in the lower federal courts. That’s what Justices Stephen Breyer, David Souter, Sandra Day O’Connor, and many other retired justices have done under existing law, hearing over 1,300 cases since 1937 while sitting as judges on the courts of appeal and district courts. Congress could specify additional duties or leave it to the justices themselves to decide through an internal rule.
The proposal is structured to avoid a constitutional issue. Article III of the Constitution provides for judicial tenure during “good behavior,” which has been understood to mean life tenure. Term limit proposals avoid the constitutional problem by requiring that a justice not leave judicial service entirely, but rather take on new duties. Ninety years ago, the Supreme Court deemed the senior judge model constitutional, declaring that Congress can lighten judicial duties so long as it neither abolishes a judge’s office nor reduces his or her salary. Just as senior judges remain Article III judges, so too would senior justices.
Term limits weren’t necessary when the Constitution came into being. Life expectancies were nowhere near where they are now. Up until the late 1960s, the average term for Supreme Court justices was 15 years. By contrast the average tenure of justices who have left the court since 1970 has been roughly 26 years, and for some, three or more decades.
Term limits are a change whose time has come.
Nancy Gertner served as a federal judge in the District of Massachusetts from 1994 to 2011 and is a professor at Harvard Law School.
