- The Washington Times - Saturday, August 13, 2005

If you were one of the most powerful people in the country — maybe the world — would you hang onto your office with your last fingernail? Probably. So who can blame Chief Justice William Rehnquist?

In July, Justice Rehnquist was ill with a fever. As he left the hospital after a short stay, he renewed his vow to stay on the Court as long as he is able. Probably the chief justice will still be issuing opinions from under an oxygen tent, at some point. I mean, the man is nearly 81. He is starting to look like those old veterans at the 75th anniversary of Gettysburg.

I don’t mean to hammer the chief justice. He has been a fine public servant and a good man to have on the Court. Richard Nixon appointed him in 1971; Ronald Reagan elevated him to chief justice in 1986. He has served well, but there finally comes a time to hang it up. No rule says you have to be carried out. So why not walk out under your own power? No matter how important Justice Rehnquist, the Court will be able to soldier on without him.

Of course, Mr. Rehnquist is not the only aged member of the Court. Justice John Paul Stevens, now 85, has served nearly 30 years. Justice Sandra Day O’Connor, who recently announced her resignation, is 75. She has served 24 years. Justice Ruth Bader Ginsberg, appointed in 1993, is 72. Justices Anthony Kennedy, Antonin Scalia, Stephen Breyer and David Souter are all in their late sixties.

This is a tenacious Court, too. Until Justice O’Connor resigned, a Court vacancy had not occurred in 11 years — one of the longest such periods in history. Power is addictive. The justices are not inclined to give it up — even when it looks like they might fall in harness.

Although the age of the Court is seldom mentioned today, it was a hot issue in 1937. Many people know (vaguely) that President Franklin Roosevelt tried to “pack” the Court by adding six justices. What isn’t as well remembered is that packing was only part of his radical attack on the Court, which he called “government by senility.” (FDR was frustrated because the Court had struck down some of his New Deal programs.)

Six of the sitting justices were then past 70. To coerce them into retirement the president pounded their age. Calling them “senile” — imagine any president saying such a thing today — he set an arbitrary retirement age of 70. For every justice 70 or older who declined to quit, FDR proposed adding a justice to the Court — with a maximum size of 15. (The Constitution mentions no specific number of Supreme Court justices. Nine became the number by consensus.)

A shocked Congress refused to enact the scheme, but FDR was crazy like a fox. Some historians suspect he never expected to get passage, but floated the proposal only to spook the justices. (“They read the newspapers, too,” said one commentator.) Ultimately, eight justices stepped down during FDR’s last eight years in office. He created a “progressive” (i.e., liberal) Court whose pedigree endures to the present day.

FDR saw that superannuated justices would rule from the perspective of the distant past and would lack currency. In his time, the past was conservative. He wanted a progressive Court, so he needed younger justices.

Today, the situation is politically inverted. The present is conservative. FDR’s “progressive” era is the distant past. Now, the Court contains old-timers who belong to the halcyon days of liberalism. They often rule that way. Indeed, the pace of such rulings seems to have increased in recent years — as if liberals know that their days in the majority are numbered.

Justice John Paul Stevens, the Court’s oldest (and one of its most liberal) justices, recently made public remarks criticizing capital punishment. Many saw his speech as foretelling still another radical ruling counter to the nation’s conservative temper.

FDR dealt with an anachronistic Court in his own distinctive style. George W. Bush probably won’t try anything similar, but the issue of justices serving to great age still lingers. Maybe FDR’s mandatory retirement age wasn’t such a bad idea. Or perhaps a term of fixed length — say 15 years — might do. Either way, the length of each justice’s service would be known at his appointment. This would remove much contention from the confirmation process.

The fixed term (my choice) would equalize service-time and reduce the cachet of nominees who can to serve far into the future. John Roberts, recently chosen by President Bush, is only 50. Justice Clarence Thomas was 43 when President George H.W. Bush appointed him in 1991. William O. Douglas, who served 36 years (longest-ever), was 40 when FDR appointed him in 1939. Appointing for youth is no better than appointing for gender or ethnicity.

Since Section 1 of Article III specifies that justices “… shall hold their offices during good behaviour” (i.e., for life), defining the tenure of Supreme Court justices either by age or length of service would require a constitutional amendment. This should be possible.

Originally, presidents could serve unlimited terms. After FDR’s election to four terms, the people decided two was enough. Perhaps the time has arrived to trim the sails of the Supremes.


Potomac Falls, Va.

Mr. Zimmerman’s weekly column, “At Large,” appears in the Atlantic Highlands Herald.

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