A good deal of the uproar over the confirmation of Brett Kavanaugh to the Supreme Court stems from the expectation that he will remain there for three, perhaps even four decades. The Constitution, most people believe, mandates that judges be appointed to the bench for life, unless they commit a crime or other impeachable offense. As only one Supreme Court justice has ever been impeached—Samuel Chase in 1803—and none convicted, removal for cause is unlikely at best. Because it is assumed lifetime tenure is enshrined in Article III, any attempt to alter that arrangement would require an amendment, another unwieldy and improbable prospect.
But the Constitution enshrines no such thing, at least not overtly. That should be the inevitable conclusion, anyway, from jurists like Kavanaugh who subscribe to textualism: the theory that the law, including the Constitution, should be interpreted solely based on the plain meaning of its text, rather than taking into other considerations such as the authors’ intentions. And if that were the case, ending lifetime tenure on the court would be easier than people realize.
Still, with lifetime tenure the accepted norm, a few decades ago it occurred to some politically savvy operatives on the right to select judges young enough to serve almost in perpetuity. The first of these nominees was also the most contentious—Clarence Thomas in 1991. The Anita Hill storm aside, Thomas was neither considered a brilliant legal scholar nor possessed of a long history of judicial achievement. He had only been a judge for 18 months. But, at age 43, he was the youngest person to be named to the court in the twentieth century, with the exception of William O. Douglas. That he was chosen for the seat previously held by the towering Thurgood Marshall only inflamed passions more.
But conservatives were quite pleased with the outcome. Thomas, almost as controversial on the bench as he had been getting to it, has been widely regarded as the court’s most conservative justice, to the right of even former Justice Antonin Scalia. As a result, Republican presidents now only nominate men—except for the unfortunate Harriet Miers, they have yet to suggest a woman—who can serve for many decades. Kavanaugh is 53; Neil Gorsuch was 49 at the time of his nomination; John Roberts, 50; and Samuel Alito a relatively ancient 55.
These ages would not have been surprising 150 years ago, since “the average American male in the 1800s could expect to make it [only] to his early- or mid-40s.” But life expectancy is now quite a bit longer, and so, on average, “justices are serving longer tenures now than at any point in the court’s history,” according to Bloomberg.
Democrats were slow to catch on. Although Stephen Breyer was only 56 when nominated by Bill Clinton, Ruth Bader Ginsburg was 60. By the time Barack Obama became president, the youth movement had become the rule. Sonia Sotomayor was 55, and Elena Kagan 50.
With the expectation of lengthy service came an extreme increase in the stakes—thus Republicans’ refusal to consider Merrick Garland, President Barack Obama’s nominee to replace Scalia in 2016, and the bloody confirmation fight over Kavanaugh. In addition, by limiting appointments to men and women too young to join AARP, the nation has effectively eliminated an entire range of highly accomplished and respected jurists, lawyers, and legal scholars. Thurgood Marshall, who, like Ginsburg, was 60 at the time of his appointment, as was Oliver Wendell Holmes Jr., would not even make the short list today.
And all this because the Constitution specifies lifetime tenure for justices—except it doesn’t. Article III, Section 1 says nothing about lifetime appointments, but rather reads only that judges “shall hold their offices during good behaviour.” If the Framers intended this to mean “for life,” why didn’t they say so? It would have been a simple matter to draft the sentence to make that intention clear.
The question of intent gets thornier yet. As Scalia himself said in a speech explaining textualism, the philosophy to which both Thomas and Kavanaugh ascribe, “If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” The fairly understood meaning of the phrase “good behavior” is not “for life.”
It could just as easily be postulated that what the Framers had in mind was not that judges could remain on the bench until they fell over dead, but rather that, as long as they discharged their duties professionally, they could not be removed solely for their political views. There is evidence to back up this interpretation. In trying to pry John Pickering out of his seat as a federal district court judge in 1803, Jeffersonians had to claim that the reason was “drunkeness,” when it was actually a fairly transparent attempt to erode Federalist influence in the judiciary. Samuel Chase, impeached the same year, survived because the only charges against him were strictly political. And Jefferson himself made little secret of his desire to try to remove his cousin, Chief Justice John Marshall, in favor of his friend Spencer Roane. But Marshall, as political as they come, gave him no opening.
The argument as to whether “good behavior” means “for life” is hardly academic. If one takes the textualist view of Article III that today’s roster of conservative justices hold so dear, establishing term limits for justices would not require a constitutional amendment, just an act of Congress. If such a law would pass and be signed by the president—although this president is admittedly unlikely to do it—the nation would not only return a degree of civility to a process that has careened hopelessly out of control, but we could once again begin to choose members of the nation’s highest and most powerful court on the basis of their achievements, rather than just their longevity.