The American court system: Anti-democratic by design
A lifetime appointment ain't what it used to be
During the 30-year period from 1941 to 1970, 18 Supreme Court justices retired from the Court. The average length of their tenure was just a hair over 12 years — about what you’d expect for a lifetime appointment among a cohort with an average age of 55 at swearing in.
Since 2001, on the other hand, 8 Justices have left the Court, if you count Stephen Breyer’s recent retirement announcement. Their average tenure: a whopping 28 years, more than double the length of the average Court term ending in the mid-20th century.
That sudden, recent shift reflects the increasingly hyper-politicized nature of the U.S. judiciary in the modern era. Federal judges are being sworn in at younger ages, and in many cases literally hanging on to their appointment until their last dying breath: since 2000, three Justices — Rehnquist, Scalia and Ginsburg — died while a member of the Court. By contrast, every single one of the 18 Justices leaving the Court between 1941 and 1970 voluntarily retired.
These figures have been adapted and updated from a 2006 study of lifetime tenure on the Court. That study found, among other things, that the U.S. is an outlier in granting lifetime tenure to members of its most powerful court: “The American system of life tenure for Supreme Court Justices has been rejected by all other major democratic nations in setting up their highest constitutional courts,” the authors find.
It’s not hard to see why. Lifetime appointments give Justices the power to retire strategically, effectively selecting which political party gets to choose their successor. Those succession fights are now especially fraught, leading to considerable partisan brinkmanship as parties seek to maximize their advantage in the courts. Tenures that span multiple decades mean Justices may find themselves out of step with modern political views toward the end of their careers, and unable to effectively preside over cases involving rapidly-changing realms like business and technology. Lengthier tenures also mean that voters have, overall, fewer opportunities to influence the makeup of the court through presidential and Senate elections.
Our unique system of lifetime tenures is just one of the factors putting the American court system functionally at odds with American democracy, as outlined in a recent thought-provoking essay by Brian Highsmith and Kathleen Thelen of the Law and Political Economy Project. Those factors of the judiciary “explain how it came to function as a forum for organized business—and any political party that represents their interests—to re-litigate legislative losses in a more favorable venue,” Highsmith and Thelen write. “While the process for enacting legislation requires multiple successive moments of consensus from different actors, there are very few practical constraints that limit what five determined justices can do on a court of nine that acts with the powers of review that ours has assumed for itself.” This is especially true when that majority is comprised of ideological loyalists, groomed and vetted by powerful third-party interests like the Federalist Society.
In recent years, conservatives like Mitch McConnell have been hyper-focused on the courts for a simple reason: conservative policies are, broadly speaking, less popular with the public than they’ve ever been. And if you can’t win in the court of public opinion, you can simply take your policy preferences to the actual courts, where ideologically friendly judges are sure to give you a favorable ruling — especially if you’re concerned less with passing new legislation, and more with rolling back whatever your political opponents are doing.
If you’d prefer a more responsive federal judiciary there unfortunately isn’t much to be done. You could create a system of staggered, 18-year Supreme Court terms, as the 2006 study suggests, which would ensure that the same number of new Justices are appointed each presidential term. But you’d still be left with a high court whose decrees can’t be overturned by anything short of a Constitutional convention. Again, that’s unusual among the world’s richest democracies. And even if it’s difficult to change these fundamental dynamics, its important to understand how they operate. That’s what makes Highsmith and Thelen’s essay — and the work of the LPE project overall — so valuable.