The Ridiculousness of Life Appointments

Another way in which the Framer's really didn't understand what they were creating.

Reuters reports: U.S. Supreme Court’s Ginsburg discloses cancer recurrence at age 87.

Justice Ruth Bader Ginsburg, at 87 the U.S. Supreme Court’s oldest member, said on Friday she is receiving chemotherapy treatment for a recurrence of cancer – the latest in a series of health issues – but indicated no intention to retire.

In a statement released by the court, Ginsburg said a periodic scan in February, followed by a biopsy, revealed lesions on her liver and she began chemotherapy on May 19. Oncologists said the information Ginsburg made public about her condition indicates she is experiencing a spread of pancreatic cancer, a serious development.

Let me state that on a human level, and apart from politics, I hope Justice Ginsburg is well and that her treatment is successful.

Let me continue as a political scientist who studies institutional structures and note, as I have before, what a mess it is that the ideological balance of the Court, potentially for decades, is currently predicated not on an electoral outcome or some constitutional mechanism, but on whether an 87-year-old can survive pancreatic cancer until January of 2021.

That is, quite frankly, more than a bit insane. This is true whether one is hoping that RGB holds on to forestall another Trump appointment or whether one is hoping that she expires so that Trump can get a third nominee to the bench one term in the White House.

Just consider the absurdity of the above. Some Americans, either secretly or not, are rooting for her to pass while others are concerned about her cancer primarily because of her seat on the Court (whether they want to admit it or not).

This is just another example of choices made by the Framers that they could not have fully understood. Their goal in lifetime appointments was to help insulate the Court from electoral politics, a goal that I applaud, but open-ended lifetime appointments has created some clear perversions.

As I have argued before, I would prefer a system far closer to what we use for the Board of Governors of the Federal Reserve System. Further, like almost the rest of the world, I think there ought to be a mandatory retirement age for federal judges (say, 72 or 75).

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FILED UNDER: Democracy, Supreme Court, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. CSK says:

    The Framers had a different concept of lifetime tenure, given that life expectancy between 1750-1800 was 36-40 years. I suppose they assumed that no one would live long enough to do any lasting damage.

    When it was instituted, Social Security was predicated on the belief that no recipient would live much beyond 68.

    Things change in ways no one ever anticipates.

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  2. Jen says:

    Echoing what @CSK said, that’s the thing about predicting the future–it’s hard to even conceive of what it may hold. Doubling life expectancy–how could they have conceived of that? Or cars? Or nuclear power? Etc.

    My heart aches for RBG, I know she likely feels a responsibility to the Court, her legacy, and more, that is keeping her from retiring. This is the system we have, and we must exist within its confines.

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  3. Richard Gardner says:

    We also have the ultimate judicial power in the hands of a very few. In 1791 the USA population was about 4 million and there were 5 Supreme Court Justices, so to maintain that level there should be ~40x the number of Justices (about 400!) to handle the case load. Not all sitting in on every case, but operating more like the District Courts of Appeals – the 9th District has 29 judges.

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  4. Mu Yixiao says:

    Once again, I’m on the other side of the argument.

    I would rather have “the notorious RBG” on the court than a “young buck” who only has a decade or two of experience.

    I don’t follow SCOTUS very closely, but pretty much every summary I’ve read about decisions over the past 10 years or so show that RBG has the right balance of “moving forward” and “remembering the past”.

    I believe that laws should move slowly (I’d rather like it if no law could be voted on until after the next election–debate it in this Congress and put the final copy in a box; the next Congress votes on it.) and the judiciary should have a very long memory.

    My argument against term limits always comes back to the same thing: You don’t expect your doctor, your tailor, or your grocer to quit after X years… Why should a good politician (or judge) be required to quit?

    As long as a judge is competent, I see no reason they shouldn’t continue in their position.

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  5. @Mu Yixiao:

    I don’t follow SCOTUS very closely, but pretty much every summary I’ve read about decisions over the past 10 years or so show that RBG has the right balance of “moving forward” and “remembering the past”.

    The question isn’t whether one wants RGB on the bench or someone else. The question concerns the wisdom of having an 87-yeard-old with pancreatic cancer’s health be a major pivot point in American politics.

    You don’t expect your doctor, your tailor, or your grocer to quit after X years…

    The death of my grocer does not impact the structure of the Supreme Court.

    And, TBH, I would, as a general matter, prefer my doctor not be 87 and on chemotherapy.

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  6. Sleeping Dog says:

    At one time the individuals appointed to the court were usually near the ends of the careers, jurists in their late 50’s and 60’s. A mandatory retirement age would be good, even if it were 80 and a minimum age of appointment, say 60. Or leave it the way it is with a 20 or 25 year term.

  7. Michael Reynolds says:

    The Constitution is failing in a number of ways at once, and we can’t fix it short of a very dramatic, one-sided political shift. It brings to mind the venerable B-52 which has been in service for 65 years. They upgrade, they add new electronics, they swap out engines, but it’s not stealthy and cannot be made stealthy so its usefulness is severely diminished. It still flies, but it doesn’t fly near advanced anti-aircraft defenses, and it lights up all bright and shiny on enemy aircraft radars. Can still blow the shit out of things, but only against weak targets.

    We amended the Constitution and then we stopped because the Framers did not guess that we’d be a continent-spanning superpower where the entire population lived within 50 miles of the coastline with an interior inhabited by cows with Senators and legislatures. They didn’t guess we’d be locked in death-grip political polarization. They built an amazing machine, but no system lasts forever.

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  8. Kathy says:

    @CSK:

    That, and they didn’t take political parties or partisanship into account.

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  9. JohnMcC says:

    @Richard Gardner: Cannot remember just now where this morning I ran across a discussion of the possible scenario in which Ms Ginsberg dies after Nov 3d but before Mr Biden is inaugurated on Jan 20th. It was thought likely that Mr Trump and Sen McConnell would name another Federalist Society Justice while the opportunity offered. The question was would the new Democratic Senate ‘pack’ (or ‘expand’) the court. Would enough Democratic Senators be sufficiently outraged to vote in >9 Justices?

    The writers said yes. I sort of doubt it. Too many D-party Senators would vote for institutional stability.

  10. DrDaveT says:

    @Mu Yixiao:

    As long as a judge is competent, I see no reason they shouldn’t continue in their position.

    That’s not one of the options on the table.

    At 70, my father-in-law was exceptionally capable.
    At 80, he was average in his abilities.
    At 90, he’s not really able to follow (or remember) an argument.
    He has not yet noticed this.

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  11. Gustopher says:

    @CSK:

    The Framers had a different concept of lifetime tenure, given that life expectancy between 1750-1800 was 36-40 years. I suppose they assumed that no one would live long enough to do any lasting damage.

    That would also suggest that they weren’t expecting a whole lot of two-term presidents.

    Life expectancy for the lower classes was significantly below the life expectancy of the ruling classes. Even if wealth sometimes bought access to fancy blood-letting and leeches.

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  12. CSK says:

    @Gustopher:
    Age 36-40 was given as the average spanning all social and financial classes. The number of children who died before their fifth birthdays was staggering.

    I recall reading of a rich young South Carolina woman alive during the mid-nineteenth century who expected to be dead by her fortieth birthday because…the majority of people had died by then.

    No, the Framers probably didn’t anticipate many two-term presidents, particularly since they made 35 the qualifying age knowing that the expiration date was only 3-5 years hence.

    2
  13. James Joyner says:

    @CSK: I don’t think that’s it, though. Many of the Framers lived into their 80s and 90s. They didn’t anticipate the longer term effects of partisanship. Or how powerful the courts would wind up being.

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  14. Paine says:

    If this sh*tbird who lost the popular vote by three million votes, who is historically unpopular, who is on the watch while more than 100,000 die from a pandemic gets to fill a third seat in a single term, it will be an injustice of epic, monumental proportions. I can’t even…

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  15. CSK says:

    @James Joyner:
    Surely they observed the duration of most people’s lives, even though whatever advantages of wealth and high birth accrued to the Framers themselves. Although not a Founding Father but the son of one, John Quincy Adams outlived all but one of his children, two of whom died under the age of one and two of whom died at 28 and 31.

    1
  16. Daniel Hill says:

    @Gustopher: Historical life expectancy at birth is also distorted by the high rates of infant/childhood deaths. Even 200 years ago, if you made it to adulthood you could expect to live into your fifties or sixties.

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  17. Jen says:

    @Paine: This is where I hope there’s a back channel open between Biden and McConnell, where it’s made clear that if that does happen, McConnell needs to stick with the precedent that *he* established, or after the election X,Y, and Z* will happen.

    * I have no idea what exactly that would be, maybe sink the filibuster and add a few more justices, or maybe it’s some kind of budget carrot/stick, whatever. McConnell needs to be put on notice now.

    1
  18. gVOR08 says:

    @Mu Yixiao: Actually, I prefer younger doctors. They tend to be more open and less manipulative. But I agree on term limits. In practice term limits don’t do much but throw power to lobbyists, who are then the only people who hang around Long enough to learn the ropes.

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  19. @gVOR08:

    But I agree on term limits. In practice term limits don’t do much but throw power to lobbyists, who are then the only people who hang around Long enough to learn the ropes.

    To be clear: I am opposed to term limited for elected officials, especially legislative bodies.

    But a fixed term of 14 or 18 years for SCOTUS strikes me as sufficient (and a mandatory retirement age).

    2
  20. Michael Cain says:

    @CSK:

    When it was instituted, Social Security was predicated on the belief that no recipient would live much beyond 68.

    When SS benefits and financing were restructured in 1983/4, the designers were well aware of increasing lifespan and have, in fact, hit it almost exactly dead on for the last 35+ years. What they didn’t anticipate is the increasing capture of productivity gains by workers who make more than the salary cap.

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  21. Moosebreath says:

    @Michael Cain:

    “What they didn’t anticipate is the increasing capture of productivity gains by workers who make more than the salary cap.”

    Nor the nonsense of the McMegans of the world saying that the Federal government has no duty to repay the amounts borrowed from the Social Security Trust Fund to finance general fund deficit spending, and instead benefits must be cut instead.

    1
  22. Joe says:

    While I think even McConnell would be hard pressed to get another Justice seated if Ginsburg retired tomorrow, JohnMcC and Paine, I would appreciate her continued participation well into January 2021 (and survival long after that) just to avoid the mental and political messiness of any attempt to the contrary. I have no faith that Jen‘s solution will shut things down.

    1
  23. An Interested Party says:

    @JohnMcC: That discussion is here…if Republicans were brazen enough (which of course they are) to do that, how could the Democrats not pack the court next year? It would be beyond political malpractice if they didn’t…and as noted in that discussion, if Republicans did something so obviously sleazy, that might give conservative Democratic senators the cover/gumption needed to go along with expanding the court…

    1
  24. Just nutha ignint cracker says:

    @Michael Cain: Then my position starting about 10 or 15 years ago that the salary cap was too low was correct. Good to know!

    ETA: Not a challenging conundrum, mind you, but a lot of people thought I was nuts at the time.

    1
  25. SC_Birdflyte says:

    I’m likewise against lifetime appointments. I think a term of 18 years (to ensure that no President can stack the composition of the Federal courts for 30 or 40 years) is the most I would consider.

    1
  26. Lynn says:

    @Mu Yixiao: “As long as a judge is competent,”

    How do we determine that?

    There are judges who say/write very little so it’s hard to know if there is anyone home or not.

    2
  27. James Kabala says:

    @CSK: Judges lived into their eighties from the very beginning. John Marshall and Roger Taney held the chief justiceship for a total of sixty-four consecutive years. Marshall was able to keep his political philosophy powerful long after his actual party had become defunct. Taney also became behind the times as the anti-slavery movement grew.

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  28. Just Another Ex-Republican says:

    Yes, the situation is ridiculous. In any rational society, now that the silliness of it is apparent, it would be easy to address. Unfortunately this isn’t a rational society, it’s America.

    I’m even in the minority that would prefer term limits on elected officials, WITH the caveat that they are in the time ranges discussed here–ie 18 years or more. Totally agree that shorter term limits simply throw power to lobbyists and bureaucracies, but I’d be fine with something that said “no more than 24 years combined in the House and Senate”. We live in a world of rapid change–and yet people who have never sent an email can impact legislation on social media liability. Ludicrous.