Ag­ing jus­tices de­serv­ing of more than a ‘death watch’

Pawtucket Times - - OPINION - 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,

There's some­thing pro­foundly mor­bid about watch­ing the Supreme Court and wor­ry­ing about the health of your fa­vorite ag­ing jus­tices. 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 701/2.

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 court­pack­ing, 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.

Noah Feldman Bloomberg View

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