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Bring the Justices Back to Earth

By PAUL D. CARRINGTON

Published: April 9, 2012

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Durham, N.C.

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• Times Topic: U.S. Supreme Court

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GIVEN the very real possibility that the Supreme Court will overturn the Affordable Care Act, liberals are concerned that the right-wing tilt of five justices and lifelong appointments ensure a decades-long assault on the power of Congress. This is especially likely given the relative youth of the bloc's conservative members: an average of 66 years old, when the last 10 justices to retire did so at an average age of 78.

The situation brings to mind a proposal voiced most prominently by Gov. Rick Perry during his run for the Republican presidential nomination: judicial term limits.

The idea isn't new. High-ranking judges in all major nations, and all 50 states, are subject to age or term limits . The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land?

One reason sometimes given is that Congress could not enact strict limits without amending Article III of the Constitution, which provides that justices hold office for the period of their "good behavior." Long lives were uncommon in 1788, so the issue of prolonged service was not considered by the framers.

Instead, they simply borrowed the term "good behavior" from a law enacted by the English Parliament in 1701 to deter a king dissatisfied with a judicial decision from firing the judge who made it. Interestingly, that same Parliament has long since imposed age limits on its nation's judges — as has virtually every national constitution written since 1789.

Indeed, Mr. Perry wasn't the first person to propose adjusting the political powers of our highest court, nor is the idea an exclusively conservative one. In 2009 a politically diverse group of law professors, including me, proposed a system that would work around the need to amend the Constitution — an extremely unlikely possibility — yet still capture the benefits of term limits.

Here's how our plan would work. Every two years the president would appoint a new justice to the court, but only the nine most junior justices, by years of service, would sit and decide every case.

The rest would then act as a sort of "bench" team, sitting on cases as needed because of the disability or disqualification of one of the junior justices. These senior justices might also help decide which of the thousands of petitions the court receives each year should be fully considered, vote on procedural rulemaking, and perhaps sit on occasional cases presented to lower circuit courts.

In short, our proposal would revise the job of a justice to a more human scale and perhaps make the court less likely to impose erratic political preferences on the citizens it governs. Because it would assure regular turnover, the court would experience fewer long-term ideological swings, enabling it to better do its original job of anchoring the legislative process to the Constitution.

The founders clearly intended to confer on Congress the power to define the number and role of justices. The Judiciary Act of 1789 set the number of justices at seven and imposed on them the duty to travel the nation in horse-drawn wagons to hear and decide cases.

In 1800 the Federalists reduced the size of the court in an effort to deny President Jefferson an opportunity to make an appointment. The number rose to 10 during the Civil War to prevent those sympathizing with the Confederacy from doing harm to the Union.

In 1937, when the court was invalidating New Deal legislation, Congress considered a law adding justices, but the bill was defeated when the need for it was eliminated (one justice unexpectedly upheld a challenged law; another anti-New Deal justice retired).

If five of our present justices broadly prohibit the federal government from providing accessible health care, Congress should consider using its constitutional power again to add two more justices — and impose a reasonable limit on the length of time that a mere mortal should hold so much political power.

Paul D. Carrington is a law professor at Duke.

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