Pairagraph by Alan Dershowitz and Arthur Hellman 12/12/2020
If recently confirmed Justice Barrett lives as long as the late Justice Ginsberg, she may serve on the Supreme Court for nearly 40 years, because the Framers of our Constitution provided that justices be appointed to serve during “good behavior.†This has been interpreted to mean a life-time appointment subject only to impeachment or retirement. At the time of the framing, the average life expectancy was in the 50s though some of our founders, such as Jefferson and Adams, lived into their 80s. Typically, justices served for about 10 years, with a few, such as the great Chief Justice Marshall, serving far longer.
Now that judges often live into their 80s and even 90s, there have been proposals to eliminate life tenure, through an explicit term limit, such as 18 years, or a mandatory retirement age, such as 70 or 75. I would support a term limit but not a mandatory retirement age. Although these proposals for shortening the terms of justices are similar in intent, they are very different in effect.
A mandatory retirement age would encourage presidents to continue to nominate younger and younger justices and judges to assure that they remain on the court for many years. If the retirement age were to be 75, presidents would be inclined to nominate lawyers in their late 30s or early 40s in order to assure a long tenure. That would not serve the interest of the country or of the judiciary. A term limit, on the other hand, would encourage presidents to nominate the best candidates without regard to age. Recall that some of our greatest justices were appointed when they were 60 or so, including Oliver Wendell Holmes, Jr., Louis Brandeis and Ruth Bader Ginsburg. They each served for many years with great distinction.
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https://www.pairagraph.com/dialogue/74bb9db9f3ae4ba28f7c86ea21650955
