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Time to Bring Down the Gavel on Lifetime Tenure for Justices?

Nowhere in the oath of office taken by Supreme Court justices does the phrase “until death do us part” appear.

It just seems that way.

Justices today, on average, remain on the high court longer and retire at a more advanced age than ever before. Supreme Court justices now routinely serve a quarter-century or more. No justice has retired at an age younger than 75 since 1981 (when Potter Stewart stepped down at 66).

The Soviet Politburo probably turned over faster.

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Which is why an informal band of prominent legal thinkers from left and right is challenging the Constitution’s grant of lifetime tenure to Supreme Court justices. With life spans lengthening, and the court’s members clinging so tenaciously to their robes, these critics want to limit justices to a single fixed term, usually set at 18 years.

So far, no prominent politician has joined them. But the idea seems destined to generate more discussion as frustration in both parties mounts over the process of selecting and confirming Supreme Court nominees.

“I think there is a widespread feeling on both the right and the left that everything surrounding the Supreme Court and the appointment of its members is broken and needs to be fixed,” said Northwestern University Law School professor Steven G. Calabresi, a founder of the conservative Federalist Society and coauthor of a fixed-term proposal.

In a recent article, Calabresi and Northwestern colleague James Lindgren documented the tendency of justices to linger longer as the court’s prestige and power have grown in the last decades.

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From 1789, when the Supreme Court was established, through 1970, the average justice spent 14.9 years on the bench. The justices who have retired since 1970 served on the court an average of 26.1 years -- nearly twice as long. Likewise, prior to 1970, the average justice retired at age 68. Since 1970, that’s jumped to almost 80.

Calabresi, Lindgren and other critics believe this lengthening tenure fuels the rising political conflict over Supreme Court nominations in two distinct respects.

One consequence is fewer vacancies. Through 1970, Supreme Court vacancies opened, on average, just under every two years; since then, they’ve come only about every three years.

Only once from 1869 (when the court’s size was fixed at nine) through 1973 did a president go a full term without making a Supreme Court appointment. That’s now happened in three of the last seven presidential terms (Jimmy Carter’s only term, Bill Clinton’s second and George W. Bush’s first). Fewer vacancies mean more conflict over those that occur because neither side can be certain when it will receive another chance to change the court.

Longer tenure also raises the stakes in each confirmation by multiplying the effect of each nominee. The common assumption during the recent confirmation debate over new Chief Justice John G. Roberts Jr. was that he would serve at least 30 years. Seven presidents might come and go before Roberts is done shaping American life -- a prospect that unsettled some in both parties, especially given the scarcity of information about his views.

“It is the length of service and influence for a single individual that is scary for a lot of people,” said Richard Davis, a political scientist at Brigham Young University and author of a recent book, “Electing Justice: Fixing the Supreme Court Nomination Process.”

Fixed terms could respond to both of those concerns, their advocates maintain. Restricting service to 18 years would limit the influence of any single justice. And once an 18-year limit was fully phased in, it would assure each president one court appointment every two years, equalizing the appointments’ effect.

Several competing fixed-term proposals have surfaced. Law professors Paul D. Carrington of Duke University and Roger C. Cramton of Cornell University would impose an 18-year term through congressional statute; they maintain they can satisfy the Constitution’s guarantee of life tenure by allowing justices to sit on lower courts after their 18 years on the Supreme Court.

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Calabresi and Lindgren, convinced that approach is unconstitutional, prefer a constitutional amendment to establish an 18-year term. Davis has the most provocative idea: He would not only impose 18-year terms, but also require prospective justices, after they receive Senate confirmation, to win approval in a national up-or-down referendum.

All of these proposals offer tempting targets for skeptics. Even many fixed-term advocates reject elections for the court, arguing that such a system would encourage presidents to pick nominees less for their legal than campaigning skills.

The most common complaint against fixed terms is that they would generate too much legal instability. Under all these plans, every two-term president could appoint four justices -- nearly half the court. That much turnover could produce constitutional whiplash, with more frequent reversal of precedents, and more rapid shifts in the court’s direction.

“I like the idea of slowing down the change [on the court], because the Supreme Court is supposed to serve as a break against the kind of national moods that can put a president in office for two terms,” says Boston University Law School professor Ward Farnsworth.

Still, as Calabresi and Lindgren write, “every other single major democratic nation” that has approved a constitution since 1789 has rejected unconstrained lifetime tenure for its highest court. So has every U.S. state except Rhode Island.

That doesn’t mean America should abandon life tenure for the Supreme Court. But it does suggest policymakers should explore these ideas more seriously. With the influence of so many justices now measured in decades, this debate deserves more than a summary judgment.

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Ronald Brownstein’s column appears every Monday. See current and past columns on The Times’ website at latimes.com/brownstein.

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