Is age undermining Supreme Court?

By PAUL C. CAMPOS
SCRIPPS HOWARD NEWS SERVICE
One of the basic principles of our legal system is that, in the words of the old English common law, "no man should be the judge of his own case." The reasons for such a rule are obvious, which is why tyrants have always taken pains to make sure it doesn't apply to them.
Curiously, the American legal system tolerates a serious violation of this principle at its very center. Each individual justice of the Supreme Court is given complete freedom to decide whether it's appropriate to continue serving on the court, in the face of advancing age and all its infirmities.
Thus we have the troubling sight of Chief Justice Rehnquist insisting that he has no plans to step down, despite an ongoing battle with thyroid cancer that kept him from attending court sessions for several months earlier this year.
And Rehnquist's situation is far from unique: if he were to retire now, at the age of 80, he would actually lower the average age at which justices have retired since 1970. Over the past few decades it has become routine for justices to hang on to their positions well into their 80s, even when health problems have reduced them to shadows of their former selves.
Even when health isn't an immediate issue, it's disturbing to consider the extent to which the Supreme Court is becoming a gerontocracy. For example, John Paul Stevens, who is old enough to remember the Coolidge administration, appears to have no plans to retire in the foreseeable future.
The aging of the Supreme Court has consequences for the both the quantity and the quality of its work. In recent years, the court has cut its completely self-regulated workload in half, to the point where the justices hear only about 75 cases annually. The court is formally in session for just 80 days per year, and for nearly five months it doesn't meet at all. And the justices are equipped with an armada of bright young law clerks to do almost all the unpleasant aspects of the job, including, perhaps, thinking hard about complex issues.
Ferocious battles
Furthermore, the recent lengthening of the typical justice's tenure (to 25 years, up from a historical average of 15) guarantees that confirmation battles will be both haphazard and ferocious.
In the modern administrative state, federal judges can't avoid wielding great political power: that's simply the nature of the contemporary legal system. And modern medicine is getting better and better at keeping very old people alive. Combine these two factors and our present system of life tenure for federal judges in general, and Supreme Court justices in particular, makes no sense.
Recognizing this, a group of legal scholars led by former law school deans Paul Carrington and Roger Cramton have put forward a proposal for reform. They suggest that Congress pass a law limiting each justice's tenure to 18 years. Once fully implemented, their proposal would require a new justice to be named to the Court every two years, meaning that each president would get to name two, but only two, justices per term.
Such a reform would spare us the sad spectacle of doddering justices hanging onto their enormously powerful sinecures in perpetuity, long after everyone associated with putting them on the court has passed from the political scene. (Rehnquist was nominated by President Nixon. It should strike us as absurd that, in 2005, Richard Nixon's most important personnel decision is still in full force and effect).
The truth is we tolerate the present system for no better reason than it has always been that way. And that is the worst kind of legal precedent.
X Campos is a law professor at the University of Colorado.