Ending the lifetime tenure given to U.S. Supreme Court justices

Erwin Chemerinsky, a liberal legal scholar and a professor of UC Berkeley Law, wrote a provocative op-ed for The Los Angeles Times in March 2014. He wrote that although he respect Justice Ruth Bader Ginsburg, she should retire from the Supreme Court this summer because only by doing so can she ensure that a Democratic president will be able to choose a successor. He added that there is a possibility that Democrats will not keep the Senate in the 2014 mid-term elections and will lose the presidential election two years later.

Ginsburg’s choice to keep her seat on the Supreme Court even after four surgeries she underwent for cancer and multiple fall injuries she suffered should surely be respected. The controversy surrounding her resignation almost feels like blasphemy because the fact that she left an indelible mark on U.S. society and the female community around the world will not be changed. Some critics, however, say that her wish of not being replaced until a new president is installed and for her to openly make anti-Trump remarks are as partisan and political as President Trump, who is trying to have the Republican-majority Senate to confirm‎ his nominee in a month. On average, a confirmation takes nearly 70 days.

American founding fathers gave Supreme Court Justices life tenure in 1776, when the average life expectancy of Americans was only 38, in order to protect judicial independence. The fact that nine Supreme Court Justices are highly respected ㅡ so much so that they are called, “the nine pillars of wisdom” ㅡ and there is a fierce competition between Democrats and Republicans every time either one of them come to power to appoint as many new Justices as possible are not the fault of individuals but because of the lifetime tenure system.

But the life expectancy in the US has jumped to 78.9 as of 2020 and we are faced with complex issues, such as LGBTQ, immigration, and health insurance that were unimaginable in the 18th century. Considering that one president appoints nine people who will represent 330 million Americans and that unlike other countries, the U.S. Supreme Court functions both as the highest and final superior court and the Constitutional Court and therefore its rulings have a great ripple effect. It is high time that discussions on changing the tenure of Supreme Court justices take place.

Former President Jimmy Carter from the Democratic Party did not appoint a single Supreme Court justice during his four-year term. Incumbent President Donald Trump has already picked three during the same period. In order to prevent the possibility that a certain president controls the federal judiciary by luck, discussions on the lifetime tenure given to the Supreme Court justices should actively take place from now.


Jung-Min Ha dew@donga.com