Dark Bilious Vapors

Robert F. Bauer (practices political law at Perkins Coie, Washinton D.C.) has written this thoughtful and thought provoking Op-Ed piece for the Washington Post: A Court Too Supreme For Our Good:

We think of appointments to the court as lifelong, but Article III of the Constitution says nothing about "lifetime appointments." It provides that justices (and judges on the lower federal courts) "shall hold their Offices during good Behaviour"; its purpose is to isolate justices from political pressures.

Many early justices served reasonably brief tenures. The first chief justice of the United States, John Jay, served five years. By comparison, the fourth chief justice, John Marshall, remained on the court for 34 years. Marshall is generally considered the greatest chief justice. But his decision to stay on, unlike George Washington's choice to step down after eight years as president, set the court and the presidency on divergent paths, to the discredit of the court. We are paying for Marshall's precedent today, just as we are the beneficiaries of Washington's foresight.

Supreme Court justices are serving ever longer. Justices who left the court from 1971 to 2000 served an average of 25.5 years. The current chief justice has served for 33 years. Eighty-four-year-old John Paul Stevens has served for 29. Sandra Day O'Connor retired after 24. John Roberts is 50, and if he serves until he is Stevens's age, he will be on the court until 2039. There is no comparable political position in this country that allows a powerful officeholder, unless called to the next world, to determine his or her own length of service in this one.

Karen on 08.07.05 @ 11:48 AM CST