Life Tenure
Matthew Yglesias wants to do away with life tenure for Supreme Court justices:
the practice of giving justices lifetime appointments strikes me as deeply unsound. Concerns you might have about justices being unduly influenced by political or financial considerations could be easily met by giving justices a single, non-renewable term of 9 or 10 or 12 years plus a decent pension.
The problem with the life tenure system is that it allows the idiosyncrasies of the justices (and all federal judges to some degree) to trump institutional norms and enshrines those idiosyncrasies, potentially, for decades. On the other hand, long-serving justices bring a measure of stability and predictability to the Court, both of which are central to the credibility and legitimacy of the rule of law itself. It’s just that we sometimes get the wrong kind of stability and predictability—the kind that preserves bad law. (Though it’s often good, paradoxically, for the courts to preserve bad law—because it’s ultimately the legislature’s job to debug the legal system, and the more the legislature leaves debugging to the courts, the less accountable the legislature will be for failing to iron out kinks in the law.)
A judiciary that’s more committed to institutional consistency than to the ideological cult of the Court, is one that will comport better with the institutional roles of Congress and the president. Judiciary reform could do that, but the big and obvious problem is implementation. The fixed terms that Yglesias envisions are, on their face, patently unconstitutional. But there are ways to achieve judiciary reform without amending the constitution—but they’ll have to wait till tomorrow.
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[...] Fixed terms for Supreme Court justices would likely violate Article III of the Constitution, which provides that all federal judges “shall hold their Offices during good Behaviour”—i.e., for life. No matter how generous we made the pension awaiting the judge at the end of the term, any proposal that forced judges out of their “Offices” by any process other than impeachment could not be instituted by statute. A constitutional amendment would be necessary. [...]