Ending Supreme Court Life Tenure
There are many critics of the Constitution’s guarantee of life tenure for federal judges and especially for the Justices. They point out that most nations with an independent judiciary give their judges long but defined terms. So do most of our states. The current system, by contrast, allows the Justices to time their retirements in a political way, subject only to the unwritten rule that they not retire in a presidential election year. Moreover, life tenure gives both parties a strong incentive to nominate young judges who will be on the Court forever.
How can this be changed? Short of a constitutional amendment (which will not happen), the only realistic answer is that a norm would have to emerge among the Justices that they should retire after a certain term. (There is a complex proposal for a statute that would impose term limits on the Justices while preserving their life tenure as judges, but that isn’t going anywhere either.) After all, George Washington could have won a third term in 1796, but he chose not to and thereby established a powerful custom for a two-term limit.
Why would the Justices adopt such a practice? I can think of one reason. The next time different parties control the Senate and the White House, getting a Justice confirmed is going to be really challenging. Imagine in that situation that a nominee sits before the Senate Judiciary Committee and says “I pledge to the American People that I will retire in ten years.” That might allow the nominee to be confirmed, and it would be most difficult for that Justice to repudiate that pledge ten years later. Once that precedent is established, the next nominee would find it hard not to make a similar pledge.