When the Supreme Court announced Thursday that Justice Ruth Bader Ginsburg had fractured three ribs in a fall at her office, there was predictable anxiety among her admirers, not only for her personal well-being but also for the future ideological composition of the court.
On Twitter, some admirers offered to donate ribs to the 85-year-old justice (#RibsForRuth).
But one well-wisher on Twitter added that Ginsburg “absolutely should have retired under Obama.”
This isn’t a new criticism. As Jonathan Turley observed in a column in the Hill last year, Ginsburg “ignored increasing calls for her retirement during the Obama administration to avoid the prospect of the flipping of her seat from a liberal to a conservative member.”
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Some of the calls for her resignation came early in Obama’s tenure. In April 2011, Harvard law professor Randall Kennedy wrote in the New Republic that not only Ginsburg but fellow Bill Clinton appointee Justice Stephen G. Breyer “should soon retire” to protect their judicial legacies.
In the same article, Kennedy prophetically suggested that “Justice Antonin Scalia would be especially loath to retire during (Barack) Obama’s presidency.” Of course, Scalia did leave the bench in 2016 when he died, but Senate Republicans prevented Obama from replacing him with Judge Merrick Garland. The Scalia seat eventually went to Neil M. Gorsuch, nominated last year by President Trump.
Whether Ginsburg was right or wrong to remain on the court through the Obama administration, it was entirely her call because justices can serve for life.
But some reformers suggest that justices instead should be appointed to fixed terms. The group Fix the Court proposes single, staggered terms of 18 years, which seems long enough to safeguard judicial independence.
Fixed terms would discourage justices from gaming the timing of their retirements. Of course, a justice could decide to retire before the expiration of his or her term in order to influence the appointment of a successor. But fixed terms would prevent a justice from clinging to office indefinitely, perhaps past the point of impairment because of advanced age.
Fixed terms would have the additional advantage, proponents say, of lowering the political stakes of any single appointment to the court.
But doesn’t the Constitution say that Supreme Court justices should serve for life? Life tenure is certainly implied by language in Article III saying that “judges, both of the supreme and inferior courts, shall hold their offices during good behavior.”
The question is whether the lifetime “office” of a Supreme Court justice is membership on that court or status as a federal judge. Under current law, a justice who retires remains a federal judicial officer and can sit on federal appeals courts. Arguably Congress could provide by statute for a fixed term for service on the Supreme Court, after which a justice would have the status of an appeals court judge. (The proposal endorsed by Fix the Court would have retired justices serve as “senior justices.” In addition to sitting on lower courts, they could step in when the Supreme Court had a vacancy or a justice was recused.)
The opposing view is that, because the Supreme Court is the only federal court mandated by the Constitution, limiting the service of justices would require a constitutional amendment.
But put aside the question of how fixed terms for justices might be established. Would they be a good idea? Given the dysfunction of the current Supreme Court confirmation process, it’s worth discussing.
Michael McGough is senior editorial writer for The Los Angeles Times.
The Los Angeles Times