A seat on the high court is now so powerful and so heady that many justices stay long past their prime. Legal scholars have concluded that half of the last 10 retirees have been too feeble or inattentive to fully participate in the work of the court.Fund makes a strong argument. (Read the whole thing.) But he does not address how term limits would affect presidential campaigns. We'd know which Justices were slated to leave in the upcoming presidential term. As it is now, we just engage in a guessing game, saying things that are often ridiculously off-base. (In the 2000 campaign we were told the next President would probably get three appointments, but in fact, he got zero.) Maybe the people voting for President should know which Justices are coming up for replacement. And there is something unseemly about the Justices -- supposedly aloof from politics -- timing their retirements to try to control the ideology of the next occupant of their seat.
The secrecy that shrouds the high court can also allow someone to turn his chamber into a nursing home, as William O. Douglas did in the 1970s. He was so determined to hang on until a new president could appoint someone philosophically compatible with him that he refused to leave after an incapacitating stroke. This is not only irresponsible, but for, say, a liberal justice hanging on through a series of Republican presidents, it is directly at odds with the preferences of the electorate. In Douglas's case, his colleagues were so concerned that they informally agreed that during the last year of his service none of the court's decisions would be valid if his was the deciding vote. They finally pressured him to resign in 1975. A weakened Thurgood Marshall often looked to his fellow octogenarian William Brennan on how to vote because he no longer could hear well enough to understand the arguments other justices made during their conferences.
But I still resist changing the Constitution, and even if I didn't, I'm realistic enough to know how incredibly difficult it is to amend. A more moderate approach, which I want to recommend, is shaming.
While we do criticize Justices for their opinions, we hold back from criticizing them for clinging to their seats too long. I think we may be observing the general social norm that frowns on age discrimination and accommodates disability. But maybe we ought to set aside that generality and get specific about Supreme Court Justices: they wield immense power and they cling to it. Why don't we talk about that? Why don't we shame them for staying too long?
We don't spare the criticism for other persons who tighten their grip on power. Before we try to amend the Constitution, let's try shaming. I think the Justices are vulnerable to our criticism. Much as they may love their power, they must also love our good opinion. They must want to be remembered as great Justices. But insulated on the Court, surrounded by respectful admirers -- should I say sycophants? -- they may need to hear stronger voices from the rest of us. Why don't we put aside our stock politeness and say more clearly and more often that it is wrong to hold your seats too long and wrong to let too many years pass without giving the President a chance to appoint someone new.
I'll leave you with this passage from Bill Maher's book "New Rules":
Just because you have a job for life doesn't mean you have to do it for life. It's well and proper that we venerate our elders -- but give it a freakin' rest....
Now, I know it must be hard to give up your job when your job is literally sitting on a throne, or being on a "supreme" court, or keeping women out of the priesthood to make room for the gays -- but at some point it starts to look like you think of yourself as indispensible, and no one is indispensible, including you, the late Mr. Infallible...
[T]here's a reason that names like Cary Grant, Joe DiMaggio, and Johnny Carson inspire a special kind of awe: They all did something that made them more beloved than anyone else -- they left before we got sick of them.