I have written about the importance of the Supreme Court on a previous occasion here. There seems to be some discussion among certain aspects of society regarding the Court these days, in light of its most recent controversial decision regarding abortion rights. Some of that discussion revolves around the possibility of enlarging the court, a step that can only be accomplished through legislative action.
In the 1940s, Franklin Roosevelt wanted to expand the size of the court to fifteen because the court at that time was blocking many of his proposals to deal with the depression. But Congress refused to go along, and the number of justices remained at nine.
The Constitution (Article III, Section 1) establishes the Court but goes no further than that, and it was the Judiciary Act of 1789 which set the number of justices at six, a number which changed six times before 1869 when the number was set at nine. The largest number of justices was ten for a short period of time. There have been seventeen chief justices and 104 associate justices since the formation of the Court, and the average term of service has been sixteen years (this will be important for a later point).
The Court did not have its own building until 1935 and even met in a private residence for a short period of time following the burning of Washington during the War of 1812.
Ironically, nowhere are specific requirements established for membership on the court, neither age nor education, and the terms of justices have never been set except “during good behavior.” Despite the fact that every justice has been a lawyer, not all graduated from law school since it was once a common occurrence for a lawyer to achieve his status following the instruction of a mentor. One justice did not even graduate from high school! As it stands at the present time, one would not have to have even been versed in the law to be appointed to the court.
One justice was also President of the United States (not at the same time), William Howard Taft.
And now, back to the point of the average tenure of justices.
Article I, Section 1 of the Constitution sets the terms of Representatives at two years. Article I, Section 3 sets the terms of Senators at six years. Article II, Section 1 sets the term of the President at four years, and it was not until 1951 that Amendment XXII, Section 1 limited the President to two terms.
And all these articles stipulate the minimum age for attaining each office. None of the articles stipulates the age at which someone must leave office. But that’s a topic for another discussion.
So why, one might reasonably ask, were the founders so cavalier about establishing requirements for those who would eventually be placed on the highest court?
It’s another example of the fact that the founders were not perfect. They did not create a perfect document. It’s a good document but it is not perfect. If it were, there would not have been any necessity for twenty-seven amendments.
But it’s time for Congress to correct a horrible oversight by enacting an amendment to the 1789 Judiciary Act, declaring certain requirements for attainment to the office of the Court, establishing a term for a justice of the Court and an age at which a justice must retire from the bench. And, since the average tenure of justices has been sixteen years, a period of fifteen years seems perfectly adequate for a term on the Court and would serve to remove many of the issues of political maneuvering.
And it appears that this could be accomplished by a simple act of Congress without requiring a Constitutional amendment.
It is definitely time.