beige concrete building under blue sky during daytime

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.

  • Chuck Witt

    Chuck is a retired archi­tect, a for­mer news­pa­per colum­nist, and a life­long res­i­dent of Winchester.