When the Constitution was written, the framers wanted a way to distribute power away from any one person or group, and to have a means of checks and balances so that no part of the government could become a bludgeon someone would wield.  So one thing they wanted to do was make the courts as independent of the Executive and Legislative branch as possible.

Hence, the Constitution provides that judges are nominated by the president (executive branch), approved by Congress (legislative branch), and serve for life (or, as the Constitution says, under good behavior). Removal of a judge could be only by impeachment by Congress for violation of the Constitution. The thought was that so long as judges didn’t have to worry about fixed terms and being subject to reappointment, they would be independent of both the executive and legislative branches. One other thought that went into that was that once a judge retired, rather than serve into their dotage, they would have no means of support, what with pensions being unknown.

But times have changed. The lifespan of judicial nominees is much longer than it was in 1787. Rather than the likelihood of serving ten or a dozen years, the norm is now 20 or 30. Judged now get good pensions, so if they decide to retire, their support is firm and generous. And Supreme Court justices are in great demand as speakers and command hefty speaker fees. So at least two of the thoughts about what would make judges independent have disappeared. Maybe it’s time to remake the court.

The financial need for lifetime appointments has disappeared. Now, the only reason for lifetime appointments is keeping S.C. justices independent is to not subject them to limited terms and reappointment. My thoughts are: change lifetime appointments to fixed terms, and do not allow for reappointment. That keeps them independent, and the lack of support being a reason for lifetime appointments is gone. So appoint justices for fixed terms, require them to retire, and keep the court rotating.

How would this work? Change the Constitution to fix the number of associate justices at eight (thus getting rid of the idea of court packing that rears up every decade or so). Have the justices serve for sixteen years, then retire. The rotation should occur in odd numbered years, so that the selection process doesn’t happen in an election year. Make the chief justice still a lifetime appointment.

Thus, in each presidential term, two justices would be appointed. The entire supreme court, not including the chief justice, would turn over every sixteen years. There would have to be a transition period from lifetime to fixed terms, but this could be done based on longest serving associate justice to newest. The transition would start beginning with the odd numbered year after a ratification of an amendment to make this happen.

What about a vacancy due to a death or early retirement? You either make the new appointee be a justice only until that term is over, or you leave the seat vacant, or perhaps you make the new appointment for the remainder of the term plus 16 years. Each of those keeps the judges independent, as they would not be subject to reappointment.

All of this would have to happen by an amendment to the Constitution. Could such an amendment be passed? I believe it could. Most Americans would welcome a more frequent turnover of justices, independence of justices is preserved, the specter of court packing is forever gone, and you get a balance of appointees among all the presidents.

Any thoughts?