WASHINGTON — Justice Antonin Scalia’s sudden death a month before his 80th birthday and the potential impasse over replacing him is giving new impetus to an old idea: limiting the service of Supreme Court justices.
Scalia had been on the court for nearly 30 years, longer than any of the current justices and all but 14 of the 112 men and women who have served on the court.
“I think 30 years on the court is too long for anyone — liberal or conservative. That is just too much power in one person’s hands for too long a period,” said Erwin Chemerinsky, a liberal legal scholar and dean of the law school at the University of California-Irvine.
The Constitution says federal judges “shall hold their offices during good behaviour,” which means essentially as they long as they wish.
The most talked-about idea has support among liberals and conservatives. A single 18-year term would replace lifetime tenure. Going forward, presidents would appoint a justice every two years, ensuring both continuity on the court and two picks for each presidential term. On the right, former Texas Gov. Rick Perry advanced a similar idea during his 2012 Republican campaign for president.
The Supreme Court already had been a topic of conversation in the presidential race. Scalia’s death has brought into stark relief how Supreme Court appointments can be a president’s most lasting legacy.
Even with Scalia’s death, there remain three justices who are at least 77 years old and have served more than 20 years. Justice Ruth Bader Ginsburg’s 83rd birthday is March 15. Justice Anthony Kennedy turns 80 on July 23. Justice Stephen Breyer will be 78 on Aug. 15.
Even with improved medical care and longer life expectancies, health crises on the court are as inevitable as they are in society at large, said historian David Garrow.
“One thing we can say in the present day is the fact that we have a court that is this elderly at the moment and there aren’t any signs of decrepitude … is like the Florida Gulf Coast dodging a hurricane,” Garrow said.
Justice William Douglas’ declining health provided the clearest example in recent decades of what can ensue when a debilitated justice remains on the bench. The 76-year-old Douglas suffered a stroke on Dec. 31, 1974, but did not retire until the following November.
Douglas tried to participate in the court’s work but had trouble staying awake, even during public court sessions. Court arguments were interrupted when the justice, who used a wheelchair, had to leave the bench. Still, it took many months before Douglas agreed to retire.
He was not alone in staying on the court too long, Garrow said. Justices Hugo Black, Thurgood Marshall and Lewis Powell all suffered significant declines in what Garrow called their mental energy and should have left the court earlier than they did, he said.
The last time the court had as many as three justices in their 80s was in 1990, with Justices William Brennan, Harry Blackmun and Marshall. Brennan retired that year, and the other two also left the bench over the next four years, along with Byron White, though he was a relatively youthful 76 when he retired.
Knowing that their picks may outlive them by decades, presidents tend to choose younger men and women for the job. President Ronald Reagan named the 50-year-old Scalia to the court in 1986. Douglas, the longest-serving justice of them all, was appointed by Franklin Delano Roosevelt before the start of World War II and served until 1975. He took his seat at age 40.
