Lifetime terms for Supreme Court justices should remain, despite critics who want to do away with them, University of Chicago Assistant Professor of Law Daniel Hemel wrote in Politco on Wednesday.
Ruth Bader Ginsburg's various health issues, including her current absence from oral arguments, have renewed calls for there to be some sort of limit to how long justices can serve.
Hemel concedes there is some merit to the argument, especially when justices have clung to their positions long after their mental faculties have left them.
But he argues any of the various proposals – such as setting term limits, enacting a mandatory retirement age or removal of judges determined to be disabled – would put at risk a great feature of the Supreme Court, which is "one of the few remaining institutions in American life in which liberals and conservatives interact collegially and find common ground on a wide range of issues."
The system is further protected, Hemel argues, because "No justice – no matter how deranged – can do serious doctrinal damage without the acquiescence of at least half his colleagues."
The assistant professor also contends if a lifetime term is taken away, so would much of the incentive to find common ground. Even a supposedly benign procedure to force a mentally or physically incapacitated justice off the bench would "raise the risk of justices being ousted not because they are incompetent but because they are ideological outliers."
Hemel also points out the historical precedents of the court surviving past justices who have been in worse physical shape than Ginsburg "suggests that the problem of judicial disability, while undeniable, is also manageable."
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