How To Fix the Supreme Court

The latest news about the Supreme Court is that most Americans want to end lifetime appointments for the justices. That’s the finding of a new Ipsos poll for Reuters. The poll discovered that 63% of adults support term or age limits for Supreme Court justices. Only 22% say they oppose any limits. Fewer than half favor other reforms, though President Biden’s court commission might change that.

This strikes us as a moment for us constitutional fundamentalists to do some creative thinking. We ourselves have always favored lifetime appointments for the Supreme Court and other federal benches. The Founders ordained that judges get to serve during good behavior. Yet we wouldn’t be averse to amending the parchment — keeping lifetime appointments but setting a minimum age for a Supreme Court justice.

What most reformers mean by age limits is that justices would have to step down upon reaching, say, age 70. What we favor is preventing them from acceding to the high bench until they’re 70. That would give them a decade or so before they could no longer stay awake. Actuarial tables, though, suggest it would end the terms of 30 or more years that, Reuters’ finding suggests, so many have come to see as a problem.

The problem is an unintended consequence of life tenure. Presidents, who themselves get no longer than eight years in office, seek ever-younger Supreme Court justices in the hopes of having an impact for a generation or more. These berobed tykes might claim to be conservatives, say, or liberals, or mere umpires. Only when it’s too late do we discover that they’ve yet to develop a stable and mature judicial philosophy.

“I have made two mistakes,” President Eisenhower supposedly said, “and they are both sitting on the Supreme Court.” Whether Ike actually said that is debated. The Baltimore Sun reckons that Ike didn’t say it and that it wasn’t a mistake. Others insist he was referring to Chief Justice Earl Warren and Justice William Brennan. It’s hard, though, to deny that both Warren and Brennan plunged leftward of what Ike expected.

Which could have been prevented had he refrained from nominating Warren at the tender age of 62 and instead waited until he figured out his views. Watching Warren abandon his conservatism had to be maddening for an ex-general like Ike. He named Brennan to the court when the New Jersey Democrat was a veritable squirt, i.e., only 50 years old. He ended up as the 7th longest serving justice and an arch progressive.

No wonder Ike is said to have rued the day. Imagine how FDR felt about Felix Frankfurter. He was deemed a radical, having founded the ACLU and plumped for Sacco and Vanzetti. He wasn’t even 60 when FDR put him on the court. Some say that at a deep level Frankfurter was consistent. Yet how could FDR have known he’d emerge as a right winger, feuding with two other FDR justices, Hugo Black and William O. Douglas?

This can happen when a president appoints justices who are too young. Look at what happened to President George W. Bush. He gave the chief justice’s job to John Roberts, who was barely out of knee pants. In theory, he was a conservative. Turns out that nominee had no idea what his philosophical views were. So he told the Senate he would just call balls and strikes. Then he turned around and upheld Obamacare.

People were running around saying, “What was George Bush thinking?” How, though, could Mr. Bush have known what the kid would do? Now the Republicans could be stuck with Chief Justice Roberts for another 15 years. We wouldn’t be in this fix had there been for justices a minimum age of 70. Neil Gorsuch wasn’t even 50 when he was put on the court. He promptly up and gave away half of Oklahoma.

It’s not our purpose to question the integrity of any of these justices, even if they disappointed their presidents who bet on them. Our purpose is merely to note that experience counsels that older nominees — men or women in their 70s — would likely, once they are on the high bench, hand down fewer surprises. Their judicial views, after all, are more likely to have been formed and settled.

Finally, establishing a minimum age of 70 would open a vast new field of possible Supreme Court nominees just in the population of circuit judges who have senior status or qualify for it. Or those on state supreme courts who have been forced to retire by age or term limits. They are all deemed too old. Yet such sages often have experience decades beyond the age of 50. Why seek callow youth for a long term rather than wisdom for a shorter one?

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Image: Drawing by Elliott Banfield, courtesy of the artist.

New York Sun