The Supreme Court: Term Limits and Mandatory Retirement

COMMENTARY

Recent Supreme Court decisions have served as reminders of the politicization of the high court. This does not imply that there hasn’t always been a political element to Supreme Court nominations, confirmations and subsequent decisions. However, in recent years, replete with acrimonious Senate hearings, the politicization seems more intense.

Attempts to manage this problem have occurred in the past. President Franklin Roosevelt attempted to pack the court in the 1930s to be better able to achieve his own political agenda, and recently, Sen. Elizabeth Warren, D-Mass., has advocated doing the same, proposing to add as many as four additional justices.

To briefly revisit FDR’s court-packing attempt, it is important to acknowledge that it was Roosevelt’s response to SCOTUS blocking some of his New Deal legislation. Four conservative justices, known as The Four Horsemen, were frequently joined in decisions by Justice Owen Roberts and often by Chief Justice Charles Evans Hughes in opposition to Roosevelt’s legislative agenda. 

Sound familiar?

The Constitution, Article 3, Section 1, provides that Congress has the power to change the number of Supreme Court justices and it has done so several times in our nation’s history. In the 1800s there were as few as six justices, but since 1869, there has always been nine. In response to Roosevelt’s proposal to expand the court in 1937, the Senate Judiciary Committee issued a report signed by 10 senators — three republicans and seven democrats — that FDR’s court bill, “should be so emphatically rejected that its parallel will never again be presented to the free representation of a free people of America.” It is ironic to note that during his 12-year term, Roosevelt was, nonetheless, able to nominate eight Supreme Court justices.

Politics is a reality within the Beltway in both the executive and legislative branches and it is naïve to think that it does not extend into the judiciary branch as well. However, it is time to consider a more prudent alternative to court packing. A combination of term limits and a mandatory retirement age seems like a solution that Congress should strongly consider.

Since 1990, 10 associate Supreme Court justices have resigned and two have died in office. All but Byron White, Sandra Day O’Connor and David Souter were 80 or older at the time of their resignation. John Paul Stevens had just turned 90 when he resigned.

Some have suggested that 18 years might be a reasonable guide for a duration of service to SCOTUS and some lower federal courts already have mandatory retirement ages. An 18-year limit would enable a justice to have an ample opportunity to leave his/her mark on legal scholarship and tradition as well as provide a regular infusion of new ideas and energy into the institution.

Beyond these considerations, the preponderance of octogenarian Supreme Court justices raises concerns regarding their mental acuity. The Alzheimer’s Association reports that one in nine people aged 65 and older have Alzheimer’s and they further state that after 65, the incidence of Alzheimer’s doubles every five years and after 85, nearly one-third of individuals exhibit signs of Alzheimer’s.

Many Americans would feel uncomfortable with an octogenarian surgeon or airline pilot, whereas there appears to be little caution or mechanism for review of aging Supreme Court justices. In fact, Chief Justice William Rehnquist served until his death, one month shy of his 81st birthday, but continued to preside as chief justice with known anaplastic thyroid cancer until the time of his death, while missing 44 oral arguments during his final term.

It would be foolish to think that Supreme Court nominations and confirmations will ever be free from political influence. However, a blend of an 18-year term limit and a mandatory retirement age at 80, whichever comes first, would mitigate the degree of political infighting surrounding such appointments as well as discourage justices from continuing to serve while awaiting a president of a similar political persuasion. Perhaps, even more importantly, such an arrangement would provide some assurance that aging justices do not continue to serve while exhibiting some cognitive impairment.

Kevin R. Loughlin, M.D., is a retired urologic surgeon and a professor emeritus at Harvard Medical School. He can be reached by email.