Justice Kennedy's Retirement Should Signal US To Install Tenure Limits

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With Justice Anthony Kennedy announcing his retirement, we should be asking ourselves: Should justices have a limited tenure on the High Court?

Associate Supreme Court Justice Anthony Kennedy.

With the announced retirement of Supreme Court Justice Anthony Kennedy, President Donald Trump is set to make another important judicial nomination. This move could effectively alter the outcomes of Court decisions, skewing them toward a more conservative path.

Americans are pretty helpless when it comes to the president’s appointments. Although the Senate must consent to his choice, it’s very rare to see nominations withdrawn on the basis of them not being able to pass muster.

In the coming weeks, debate will center upon how conservative (and how devoted to Trump) the president’s eventual nominee will be. But another debate should also be had, and that should focus on whether justices should remain lifetime appointments any longer.

A limit on the length a justice should remain on the High Court isn’t that absurd, and there are many reasons why it would make sense to institute such a restriction. For starters, justices who sit on the bench, and who remain in that position for several decades, can become unfamiliar with changes in society. New technologies and the way that laws can be affected by them need to be considered, as do social mores that change over time.

A justice who has been on the Court for 30 years may not have the proper perspectives to rule fairly for a modern case (one example: Stephen Johnson Field, who was appointed to the Court before slavery was abolished, ruled with the majority on the infamously disastrous Plessy v. Ferguson case).

Long tenures for justices are also undemocratic. For elected officials in the legislative branch, term limits are a hindrance for constituents. They restrict whom voters can choose to represent them. If a district wants to continue to send the same person back to office each time their term expires, they should have the right to do so.

The same cannot be said for unelected officials like Supreme Court justices. These individuals are selected in a non-democratic way, which is fine — the interpretation of law isn’t always best settled by what can sometimes amount to mob mentality. However, an influx of fresh viewpoints must be respected to keep the perspectives of present-day constituents in mind when rendering their opinions.

The long tenures of Supreme Court justices were probably not expected by our founders, either. At the time of the adoption of the Constitution, the average lifespan of a male in the U.S. was around 36 years. Even though the educated gentry of the time had longer lifespans, people weren’t expected to live (and serve as justices) into their 70s or 80s.

Eliminating life appointments may have some added benefits as well. Today, nominations are political affairs, with how conservative or how liberal a justice is being paramount to the discussion. Those debates would likely continue, but they wouldn’t be so contentious if people knew another opportunity to appoint a justice was impending a few years into the future.

It would also treat presidents equally — instead of justices themselves being political, vowing not to retire until a Democrat or Republican came into office, presidents would be guaranteed a set number of appointments to expect upon entering office. There may be a few variances, based on unexpected retirements and deaths, but for the most part, presidents and the American people themselves could know what to expect instead of being blindsided like we are today.

The median tenure for all 113 Supreme Court justices in the history of our nation is around 15 years. That seems like a reasonable length of time any justice should serve. It ensures that a presidential appointment lasts at least a few terms beyond their own time in office, but not so long that the attitudes of a new generation are ignored by a justice who has been there for far too long.

Ultimately, this particular debate won’t be solved right now, as it would require a Constitutional amendment to become reality. Still, Americans ought to be asking themselves, as an unpopular and callous president is set to make another lifetime appointment, whether we want him (or any other president for that matter) to have the ability to do so in the future.

 

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