Saving this Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms

Motherhood. Apple pie. Life tenure for United States Supreme Court justices. What do these three things have in common? An attack on any one of these “sacred cows” has come to be seen by many as an attack on America itself. But why should it be so for life tenure? Certainly, Alexander Hamilton and the other Founding Fathers intended the federal judiciary to be independent of and protected from the influences of the political branches of government, and life tenure was a vehicle for such an effort. But life tenure was by no means the only option, and, as this Note argues, not even the best one.

Life tenure for Supreme Court justices may have helped to insulate the robed tribunal from political pressures, but it has created considerable problems of its own. First, as justices have become more personally invested in their decisions, they have become more and more loathe to allow a president with opposing viewpoints to name their successors. The result has been strategic retirements—carefully timed departures—that allow presidents to fill vacancies with similarly like-minded judges. The phenomenon of strategic retirements has become increasingly worse as the Court has entered the “culture wars” of the post-Vietnam War era. Second, the present system creates incentives that reward presidents who name young nominees to the Court. The current system gives an improper incentive to a president to nominate a young candidate for the Court because a younger nominee generally ensures the perpetuation of the president’s particular sociopolitical vision over a longer tenure. Finally, the current system creates an utterly random distribution of Supreme Court appointments among presidents. For example, something is amiss under the present system when one president can, by random chance, have three, four, or even nine opportunities to appoint a justice to the Court in one presidential term, while another president might not have a single nomination. It is potentially troubling for one president to enjoy the fortuitous opportunity to pack the Court when his successor may not have the opportunity to nominate anyone.

The best way to address these three problems bred by life tenure is to replace life tenure on the Supreme Court with a system of staggered, nonrenewable eighteen-year terms. Ending life tenure would require a constitutional amendment. The amendment proposed by this Note would eliminate the justices’ ability to strategically retire, temper the incentives for presidents to nominate young justices to the Court at the expense of older candidates, and guarantee each president two nominations per term. Because justices could not be reappointed, the proposed amendment would arguably leave them with as much independence as they have under the current system. Moreover, even when a justice’s term on the Court has expired, nothing would prevent him or her from continuing to serve on a lower federal court of his or her choosing for life. The amendment proposed by this Note ensures the protection of Hamilton’s goal of an independent judiciary insulated from political pressures while preventing justices and presidents from playing political games of their own with the nomination process.

Common Sense and Legal Science

The notion that law can be reduced to a science that yields truths as certain and universal as those of the physical sciences seems so implausible that efforts to characterize law in that way tend to strike most modern readers as either naïve or dogmatic. This Note seeks to challenge the assumption of some modern scholars that because nineteenth-century American legal theorists did describe law as a science, their use of the term “legal science” represented an attempt by the legal elite to obscure the inherently political nature of legal doctrine. At the same time, this Note challenges the claims of other scholars, who have defended the concept of law as a “science” by arguing that legal reasoning can yield deductively necessary and certain conclusions. Both groups of scholars assume that achieving legal certainty was the goal of nineteenth-century legal science and only disagree as to whether such a goal was intellectually justified. This Note argues that many nineteenth-century legal theorists aspired to transform law into a science not simply because they desired legal certainty, but because they desired legal knowledge. Specifically, such theorists as James Wilson and Gulian Verplanck developed a philosophy of law grounded in epistemological and metaphysical arguments of the Scottish Common Sense school of philosophy. For these theorists, such arguments seemed to justify their belief that they could discover legal principles through the same inductive, empirical methods that had yielded discoveries in the natural sciences. In other words, common sense philosophy allowed them to conceive of themselves as legal scientists.

Crossroads in Cambodia: The United Nations’ Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge

For almost twenty-five years, the former leaders of the Khmer Rouge, responsible for the deaths of over 1.7 million of their fellow Cambodians, have enjoyed freedom absent domestic and international accountability for their actions. Since 1997, the United Nations and Cambodia have engaged in contentious negotiations for the establishment of a criminal tribunal to try the former leaders of the Khmer Rouge. In March 2003, the United Nations and Cambodia agreed on an internationally supported, yet Cambodian-controlled, tribunal to prosecute the former members of the Khmer Rouge for genocide and crimes against humanity that occurred between 1975 to 1979. The U.N. General Assembly is awaiting its expected ratification by the Cambodian National Assembly. While these developments appear to signal a shift toward international justice and domestic reconciliation, the presence of widely asymmetrical goals and intentions between the U.N. and the Cambodian government poses unfortunate risks both to the Cambodian people and to the international community. 

This Note will argue that the agreed-upon proposal will both fail to meet international standards of justice and prove to be a greater risk than complete withdrawal of international involvement. To this end, the Note will argue that the U.N. should either demand the establishment of an ad hoc international tribunal for Cambodia (with goals and structure similar to existing tribunals created for the former Yugoslavia and Rwanda), or completely withdraw from any involvement in the adjudication of the Khmer Rouge crimes. Any alternative would compromise the best interests of the international community, the development and enforcement of international law, and the stability and rehabilitation of Cambodia.