“Ask the Author” with David Stras: Part 2

This post is part 2 in our discussion with Professor David Stras of the University of Minnesota Law School (part 1 is here). Professor Stras has written extensively on issues surrounding the Supreme Court; in this entry, we discuss his paper about life tenure, “An Empirical Analysis of Life Tenure: A Response to Professors Calabresi & Lindgren,” which can be found here.

First, I think it would be worthwhile for you to briefly explain a bit about the context of this paper: why is there controversy about whether the average length of the Justices has been going up recently? Can you explain to an audience that may not be overly familiar with statistics why a question that seems so straightforward can be so complex?

In the past three years, a number of academics, commentators, and editorial page writers have proposed various measures to limit the tenure of Supreme Court Justices. The proposals range from limiting the tenure of Justices to a fixed number of years (most commonly eighteen years) to creating a mandatory retirement age for Justices at age seventy or seventy-five. Vital to these proposals is an empirical claim that members of the Court are staying far too long in recent years and that the practical meaning of life tenure has changed since the Founding. Lengthy tenures, many academics claim, have resulted in less democratic accountability for the Court due to the relative rarity of appointments in recent years. The most comprehensive empirical study was undertaken by Professors Steve Calabresi and Jim Lindgren of Northwestern University Law School. Using periods of thirty years to graphically display the average tenure of Justices, they found that the increase in tenure between the period of 1971 and 2006 was both “astonishing” and “unprecedented.” Calabresi and Lindgren’s claims have been discussed in newspapers as wide-ranging as the New York Times and the Wall Street Journal, and have been mentioned by scholars of every political persuasion.

The calls for reform of life tenure have largely gained traction because of the eye-popping 26.1 years that Supreme Court Justices have purportedly served since 1971. We demonstrate in the paper that Calabresi & Lindgren’s claims of a sizeable increase in average tenure are largely a result of their methodological assumptions. We do not deny that tenure is increasing, but we dispute the claim that it is rising in a dramatic and unprecedented fashion. Measuring a statistic as straightforward as average tenure is anything but easy. A researcher has to make a number of decisions about how to measure the data. The most important assumption is when to measure the data—at the beginning of a Justice’s Term, at the midpoint of her career, at the time of retirement, or at some point in between? We found that, when that single assumption is changed and tenure is no longer measured on the date of retirement, Calabresi and Lindgren’s claim of a dramatic and unprecedented trend in average tenure falls apart. One reason for that is that a number of long-serving members of the Court, such as Justices Black and Douglas, are moved from the period spanning 1971 to 2006 into an earlier period. Likewise, changing the period lengths from thirty (30) years to fifteen (15) or forty (40) years also undermines the robustness of their claim, which means that their study suffers from a periodization problem. If the trend was robust, as Calabresi and Lindgren claim, then it should survive the simple changes we make in their underlying assumptions.

Is it truly length of time on the Court that one ought to be concerned about, or is it merely the age of a justice that is determinative as to whether he is capable of serving?

As we wrote in an earlier paper published in the Washington University Law Quarterly, the answer is that neither age nor length of tenure are particularly important in a vacuum. As an initial matter, the Founders surely contemplated the length of tenure that we are witnessing today—the anti-Federalists, for instance, criticized giving life tenure to federal judges because they feared that judges would serve for forty years or more. Moreover, a far more important issue than age or length of tenure is the longstanding problem of mental and physical infirmity on the Court, and length of tenure and age are at most proxies for that phenomenon, and historically poor ones at that. Justice William Douglas was in such bad shape toward the end of his tenure that his colleagues (with Justice White dissenting) took the unprecedented step of essentially voiding his vote on many pending cases and barring him from authoring any of the Court’s opinions. There is ample evidence that many other Justices, including Justices Cardozo, Marshall, and Black, were mentally or physically infirm toward the end of their careers. Several years ago, legal historian David Garrow wrote a revealing and important article for the University of Chicago Law Review that documented the increasing problem of mental “decrepitude” on the Court. It is a problem that has not received much publicity or attention, in part because we often only know the extent of a Justice’s infirmity many years afterwards. Even so, the problem is serious and deserves attention because it impacts the internal functioning of the Court, its ability to do business, and even its long-term institutional legitimacy.

As you mention at the end, you believe “that statutory efforts to abolish life tenure are unconstitutional.” That being the case, if life tenure really is causing significant problems with the workings of our judicial system, what ought to be done?

Again, in our Washington University Law Quarterly article, we make the case that statutory efforts to abolish life tenure, such as through a mandatory retirement age or a fixed tenure, are unconstitutional. Calabresi and Lindgren largely agree with our conclusions on the issue. Another option, of course, is to amend the Constitution to take out the language that Article III judges shall serve during “good behaviour,” which would then permit Congress to pursue statutory efforts to abolish life tenure. Fixed eighteen-year terms or a mandatory retirement age could also be mandated directly through a constitutional amendment, as some scholars have proposed. But I don’t believe that a constitutional amendment is either necessary or wise.

Empirical evidence collected and analyzed by political scientists demonstrates that judicial pensions are the most important factor in a Justice’s decision to retire, far more important than the party of the President or which political party has control of the Senate. Accordingly, we proposed in the Washington University Law Quarterly article that Congress enact pension reform that would double the “salary” of a Justice upon retirement (or election of senior status) or a claim of permanent mental or physical disability. In other words, we propose creating a substantial financial incentive for Justices to retire—a “Golden Parachute”—that would encourage retirement before the onset of physical or mental infirmity. Aside from a straightforward monetary incentive, the passage of such legislation would send an important message to members of the Court that Congress will no longer tolerate Justices who remain on the Court well past their ability to perform the duties of the office. So-called “court curbing” legislation has played an important and effective role in sending messages from Congress to the Court in the past, and there is no reason to believe that such a measure would not do so today.