Aging Justices Deserve Better Than a Death Watch

(Bloomberg View) -- There's something profoundly morbid about watching the U.S. Supreme Court and worrying about the health of your favorite aging justices. (They're 84, 81 and 79, by the way.) A mandatory retirement age would take away the uncertainty. Such a rule was part of an elaborate court-packing plan proposed Monday by the president of Poland -- before he withdrew it under intense international pressure.

In principle, age limits for life-tenured judicial appointees make a lot of sense. In practice, such proposals are usually the product of gamesmanship by a party in power that wants to appoint more of its preferred judges. The precedent for the Polish proposal goes all the way back to Franklin Delano Roosevelt, who proposed adding new justices to the U.S. court for every justice who had passed the age of 70 1/2.

Contrary to popular opinion, what's good about limits isn't that old justices perform badly or go senile. Many of Oliver Wendell Holmes's greatest opinions came in his late 70s and early 80s. More recently, John Paul Stevens issued crucial opinions well into his late 80s. 

There have been a few justices who began to fail at the end of their careers, but the other justices have the capacity to ease them out gently. Thurgood Marshall reportedly told his clerks while Ronald Reagan was president, “If I die, prop me up and keep on voting.” But Marshall did retire while George H.W. Bush was president, and was replaced by Clarence Thomas.

The value of age limits is rather that it creates predictability: If we know exactly when a justice will have to go, we can start thinking about possible successors.

That means we can avoid the highly distasteful yet necessary practice of speculating about the justices' health. More important, it could mean that we move back to the assumption that when a justice retires, the president then serving should be able to make an appointment and get a Senate vote on it.

Notice that term limits for justices, rather than age limits, would have the same effect of ensuring predictability. What's more, term limits would enable presidents to pick slightly older justices than they do now. If the justices all served 20 years, a healthy 60-year-old would become a plausible choice, because there would be no need to try to appoint a justice who serves 30 years or more.

Yet despite the appeal of limiting justices' terms of service, the idea has a pretty terrible pedigree.

Roosevelt's court packing plan reflected the reality that in the U.S., the Constitution guarantees life tenure for the justices. The president thus couldn't propose mandatory retirement.

Instead, Roosevelt cleverly exploited the fact that the Constitution never says how many justices there should be. The number nine is the product of statute, and has changed over the years.

The president asked Congress to enact legislation that would allow the creation of new judicial slots for every justice over his specified age of 70 years and six months. That would have given Roosevelt the chance to appoint multiple new justices right away, all of whom would presumably have reflected his political leanings.

Roosevelt was frustrated that the court's conservative justices -- the so-called Four Horsemen -- were blocking key New Deal legislation. All were over 70. The balance on the court would have changed.

In the end, the Senate refused to pass the legislation. But Roosevelt got his way. The swing justice, Owen Roberts, appeared to change his perspective on the New Deal, a development known derisively as the “switch in time that saved nine.” Then the Horsemen began to retire -- and Roosevelt got to replace them.

Polish President Andrzej Duda's proposal included a provision that would have lowered the existing mandatory retirement age from 72 to 65. That would have forced 40 percent of the Polish Supreme Court's justices to retire by the end of the year. Not surprisingly, Duda also wanted to increase the president's role in selecting the new justices.

This was classic court-packing, which tends to undermine the rule of law by elevating politics over legal principle. Fortunately, it was met with fast and hard criticism from Polish civil society and European officials. Poland has already seen significant blows to judicial independence through manipulation of its constitutional court, which is separate from the Supreme Court.

Stung by the criticism, Duda withdrew his plan just a few hours after proposing it.

The entire episode should serve as a reminder that the U.S. would benefit from greater certainty in the judicial transition process. A voluntary custom to set a retirement age isn't in the cards. That leaves a constitutional amendment. To pass, such a proposal would have to be designed to grandfather in the existing justices. Maybe it's exactly what we need to spare us -- and the justices -- the indignity of the inevitable speculation about the state of their health.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.

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