Should Supreme Court Justices be Granted Life Tenure?

10-24-12 In chapter four of Our Undemocratic Constitution, Sanford Levingson addresses the idea of life tenure for judges. He asserts that the good behavior clause in Article iii of the constitution is not clearly spelled out and is therefore subject to interpretation. Levingston reasons that in spite of judges' terms of service, they "cannot be removed from office for partisan political reasons [;] so long as the judges behavior is within the range viewed as good, that is uncorrupted… then they are protected against losing their positions" (Levingson, p.126). Though he accepts that life tenure has been established as a common good in the past, he feels that the interpretation of the clause ought to be updated. Levingson claims life tenure for Supreme Court justices "is an idea whose time has passed, and it offers a good reason for any concerned citizen… to be dissatisfied with the constitution" (Levingson, p.126). After claiming that the good behavior clause is outdated, Levingson turns the attention to the increasing length of term justices serve on the Supreme Court. He argues that lifetime employment of judges creates opportunity to have incompetent ones. He makes this clear while referencing the situation Justice William O. Douglas found himself in, persistent in remaining on the court after a debilitating stroke; "his colleagues resolved basically not to count his vote in any case in which it would have been decisive, as in 5-4 opinions" (Levinson, p.129). Levinson argues that such a judge choosing to remain on the shelf past his expiration date can even be debilitating to the court system because he remains on the court for egoistic reasons more so than a desire to serve the justice system. He makes this definitively clear by the claim that "the elderly [should have] perspective about their condition if they occupy important public positions. Even if Rehnquist had a constitutional right to stay on the court, he should not have done so" (Levinson, p.129).