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No other democracy gives life tenure to judges on its version of the Supreme Court

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The battle to replace Justice Antonin Scalia on the Supreme Court is so intense in part because the stakes are extremely high. Not only is the Court closely divided, but Scalia's successor will likely serve on the high court for two or three decades — just as Scalia himself passed away after having served nearly 30 years.

This is a somewhat strange feature of the federal judiciary (state courts, for example, don't work like this), and most politically conscious people are at least vaguely aware of proposals to replace life tenure for justices with something like fixed 18-year terms. But what I didn't realize until I read Steven Calabresi and James Lindgren's article "Term Limits for the Supreme Court: Life Tenure" is that the United States is literally unique in this regard. Every other country employs term limits, a mandatory retirement age, or both:

[E]very other single major democratic nation we know of — all of which drafted their respective constitutions or otherwise established their supreme constitutional courts after 1789 — has chosen not to follow American model of guaranteeing life tenure to the Justices of its equivalent to the Supreme Court.

In addition to lowering the stakes over filling vacancies, a shift to fixed terms would provide a number of other advantages:

  • There would be some protection against the current very real threat of a justice suffering from dementia.
  • There would be less randomness to the appearance of vacancies, and it would more strictly relate a party's ability to fill the bench with a party's ability to win presidential elections.
  • There would be less premium on finding young nominees and more ability for presidents to nominate judges with substantial track records.

Obviously you would need to work out a few implementation details about pensions, post-SCOTUS employment, and what to do if someone dies 15 years into an 18-year term. But if literally every other democracy on Earth has managed to find alternatives to life tenure, the United States can too.

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