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Return to Sender: Responses to Professor Carrington Et Al FEATURE RETURN TO SENDER: RESPONSES TO PROFESSOR CARRINGTON ET AL. REGARDING FOUR PROPOSALS FOR A JUDICIARY ACT OF 2009 * David C. Dziengowski INTRODUCTION “Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.”1 At the conclusion of the American Revolution in 1783, the average human lifespan was about thirty-five years.2 The Framers, dissatisfied with the Articles of Confederation, convened the Constitutional Convention in Philadelphia, Pennsylvania, on May 25, 1787. Article III of the resulting U.S. Constitution provided judges of the “supreme and inferior Courts” with presumptive life tenure.3 Fast-forward more than two centuries. The average human lifespan in the United States is now over seventy-seven years.4 Due in part to the increase in longevity, the average term of years a Supreme Court Justice serves is * Lieutenant Junior Grade, United States Navy JAG Corps; J.D., Rutgers School of Law–Camden, 2008; B.A. History, The College of New Jersey, 2005. I wish to thank the Honorable Joseph H. Rodriguez, Senior U.S.D.J., for reviewing an earlier draft of this Article and providing helpful thoughts and suggestions. The opinions expressed herein are entirely my own and do not necessarily reflect the views of the United States Navy or the Department of Defense. Any errors or omissions are similarly my own. 1. THE FEDERALIST NO. 78, at 471 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 2. CHRISTOPHER WANJEK, BAD MEDICINE: MISCONCEPTIONS AND MISUSES REVEALED, FROM DISTANCE HEALING TO VITAMIN O 70 (2003). 3. Article III, Section 1 provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” 4. Melonie Heron et al., Deaths: Final Data for 2006, 57 NAT’L VITAL STAT. REP. 1 (2009), available at http://www.cdc.gov/nchs/data/nvsr/nvsr57/nvsr57_14.pdf. 349 350 STANFORD LAW & POLICY REVIEW [Vol. 21:349 steadily rising. On average, Supreme Court Justices now serve just over twenty-six years on the bench.5 Proponents of judicial reform contend that this increase in tenure has caused appointments to the bench to become irregular and rare.6 For example, President Nixon made four appointments to the Court in five years, whereas President Carter made none.7 Similarly, there were seven appointments to the Court between 1981 and 1994 but none between 1995 and 2004.8 Reformists contend that this new judicial reality is antidemocratic and must be thwarted.9 Reformists also argue that the current system should be changed due to what they presume to be the following negative consequences of expanded tenure: (1) increased likelihood of superannuated judges at all levels of the federal judiciary, (2) decreased accountability, (3) increased politicization of appointments, and (4) the new tendency to appoint young nominees to the Supreme Court.10 To be sure, these arguments for judicial reform are not without merit. Each points to imperfections in the current system. When viewed in the proper context, however, the so-called negative consequences of expanded tenure— and, perforce, the current system—amount to little more than false alarms.11 No system is perfect, and there is little evidence to suggest that any reform proposal will improve the current one. Indeed, any substantive changes in the appointment process or operations of the Supreme Court may introduce their 5. Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 15, 16 (Roger C. Cramton & Paul D. Carrington eds., 2006) (noting that the average tenure of Supreme Court Justices who retired between 1971 and 2005 is 26.1 years). 6. For the purposes of this Article, “tenure” used alone shall refer to the length of time served on the court. It should not be confused with “life tenure,” referring to the concept of permanent appointments. 7. Stuart Taylor Jr., Life Tenure is Too Long for Supreme Court Justices, 37 NAT’L J. 2033, 2033-34 (2005). 8. U.S. Senate, Supreme Court Nominations, 1789-present, http://www.senate.gov/pagelayout/reference/nominations/reverseNominations.htm (last visited Oct. 24, 2009). 9. See, e.g., Calabresi & Lindgren, supra note 5, at 38. 10. These alleged negative consequences are examined in depth in Part III of this Article. 11. For example, a credible case can be made that the current trend of expanded tenure is just that—a current trend and nothing more. The average number of years a Justice spent on the Supreme Court from 1789 to 1820 was 7.5 years. That number spiked to 20.8 years from 1821 to 1850. Then, from 1941 to 1970, the average term went down considerably to just 12.2 years. Calabresi & Lindgren, supra note 5, at 23. Adjusting the period used for comparative analysis can make the trend of expanded tenure seem illusory. See Kevin T. McGuire, An Assessment of Tenure on the U.S. Supreme Court, 89 JUDICATURE 8, 9-12 (2005) (disputing the existence of a recent trend of expanded tenure for Supreme Court Justices); David R. Stras & Ryan W. Scott, An Empirical Analysis of Life Tenure: A Response to Professors Calabresi & Lindgren, 30 HARV. J.L. & PUB. POL’Y 791, 797 (2007) (contending that the recent increase in the average tenure on the Supreme Court has “not been dramatic and unprecedented” (emphasis added)). 2010] RETURN TO SENDER 351 own negative consequences.12 As such, reform proposals should ultimately be rejected. Notwithstanding tangible changes to the world, the preeminent concern for maintaining an independent judiciary is as pressing today as it was when the Framers first penned Article III.13 Preeminent scholar and Duke University Law Professor Paul D. Carrington contends otherwise. In a recent letter signed by thirty-three members of the legal community and addressed to Vice President Joseph Biden, Attorney General Eric Holder, and certain members of the congressional judiciary committees, Carrington and his cosigners propose four reforms to the Supreme Court.14 These proposals are styled as statutory texts, “in hopes they would not be treated as ‘mere political or scholarly utterances.’”15 Much more than spontaneous or reflexive responses, the proposals are grounded in several years of research and academic debate concerning the negative consequences of the current system.16 This diligent research likely accounts for the statutory 12. Vicki C. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article III Judges, 95 GEO. L.J. 965, 1002 (2007) (contending that “changes could have unforeseen effects, including a sense of diminished independence born from the direction of the proposed change”). 13. Compare 1 PAPERS OF JOHN ADAMS 252-309 (Robert J. Taylor ed., 1977) (reprinting letters between John Adams and William Brattle of the Boston Gazette, wherein Adams stressed the need for an independent judiciary), with Justice Sandra Day O’Connor, A Fair, Impartial and Independent Judiciary, NAT’L VOTER, Feb. 2008, at 7, 8 (“I agree . that the courts are important guardians of constitutionally guaranteed freedoms in our system, and that the system breaks down without judicial independence.”). 14. Letter from Paul D. Carrington, Duke University Law Professor, to Vice President Joseph R. Biden, Jr., Attorney General Eric J. Holder, Jr., Senator Patrick J. Leahy, Senator Arlen Specter, Representative John Conyers, Jr., & Representative Lamar Smith (Feb. 18, 2009) [hereinafter The Letter], available at http://www.scotusblog.com/wp/groups- proposals-for-supreme-court-reform/. The letter was signed by Vikram D. Amar, Barbara A. Babcock, Jack M. Balkin, Robert A. Burt, Paul D. Carrington, Roger C. Cramton, M. Michael Egan, Lino A. Graglia, Yale Kamisar, Harry T. Lemmon, Sanford Levinson, George W. Liebmann, Frank L. Michelman, Paul J. Mishkin, Daniel J. Meador, Alan B. Morrison, Robert F. Nagel, Philip D. Oliver, Sallyanne Payton, Eric A. Posner, L. A. Scot Powe, Jr., Jefferson Powell, Judith Resnik, William L. Reynolds, William M. Richman, Mark D. Rosen, Christoper H. Schroeder, David L. Shapiro, Theodore J. St. Antoine, Joan Steinman, David R. Stras, Peter L. Strauss, and Herbert P. Wilkins. According to Professor Carrington, the proponents for reform “are a diverse group whose political views extend across the political spectrum.” See id. at 1. 15. Robert Barnes, Legal Experts Propose Limiting Justices’ Powers, Terms, WASH. POST, Feb. 23, 2009, at A15 (quoting The Letter, supra note 14, at 2). 16. See, e.g., SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006); REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 5; LARRY J. SABATO, A MORE PERFECT CONSTITUTION (2007); see also Richard Brust, Supreme Court 2.0: From Term Limits to Circuit Riding to Cameras in the Courtroom, Rethinking, Reforming and Re-engineering the Top Bench, 94 A.B.A. J. 38 (2008); David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. CHI. L. REV. 995 (2000); Jackson, supra note 12; McGuire, supra note 11; Stras & Scott, supra note 11; David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for a “Golden Parachute,” 83 WASH. U. L.Q. 1397 (2006); Gary S. Becker, How to Use 352 STANFORD LAW & POLICY REVIEW [Vol. 21:349 structure of the proposals, which, according to Professor Carrington, “seemed better ‘than writing another law review article.’”17 This Article responds to the reform proposals. Specifically, this Article addresses the physiological, institutional, and political arguments that serve as the foundations for these proposals.
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