Stuart Taylor argued in last week's National Journal (subscribers only) that life tenure is too long for justices, and it's becoming increasingly obvious that he's right:

James Madison, Alexander Hamilton, and company had little occasion to ponder the possibility that one day most justices would serve longer than your average medieval monarch. The 10 who have retired since 1970 have averaged 25 years on the Court. And if 80-year-old Chief Justice William Rehnquist steps down soon, he will pull the average post-1982 retirement age down a bit.

By contrast, the first 10 justices served an average of under eight years, in part because of the rigors of the "riding circuit" that covered hundreds of miles on horseback. Three left to take other positions. Only two lived to age 70. The 90 justices who had completed their terms by 1970 retired (on average) after 15 years on the bench, at age 68.

As Taylor notes (and as federal appellate judge Richard Posner's analysis, in Aging and Old Age, of legal longevity and the biological aging process confirms), justices who serve for decades into their extreme old age will tend toward hubris, intellectual autopilot, diminished productivity, and decrepitude, even while the Court's isolation from the political process (in addition to the bad decision-making process resulting from the factors just listed) hinders its efforts to maintain its legitimacy, makes every confirmation battle a prelude to apocalypse, and turns one of the presidency's cardinal prerogatives into a crapshoot (as Taylor notes, Nixon chose four justices in his first term; Bush II and Carter chose none).

Taylor endorses a proposal, discussed here by Volokh and co., to limit Court members' effective service to eighteen years by creating a class of "senior justices" who would not hear cases but who would participate in procedural decisions. (This is necessary to get around the Constitution's life tenure requirement.)

Something like this, or perhaps a simpler Constitutional amendment to get rid of life tenure for justices (federal judges already have substantial inducement to avoid sticking around for decades and decades), is pretty clearly necessary. The Court's pronouncements are increasingly made ex cathedra, and this, combined with the longstanding truism that, in America, every political question eventually becomes a judicial one, poses a serious threat to the exercise of democratic and liberal (in the original sense) government. (Conservatives, in the contemporary sense, have another reason to be suspicious of long-serving justices: as Taylor notes in his current NJ column, which nonsubscribers may read, O'Connor and other Court members show a decided tendency to drift leftward as the years advance.)

Like the College of Cardinals and the Bishop of Rome, the Court's members sit atop an unassailable hierarchy; unlike the Pope, though, the Court's mandate comes ultimately not from God but from the people, and justices are chosen not by the Holy Spirit but by the decidedly mundane political process. Manipulation of the Court's membership by Congress and the President to achieve judicial goals is, in an historical sense, nothing new; during the nineteenth century it was practically as common as adding new States. The 1937 debacle ended that practice, as Roosevelt's bid to save his New Deal from the obstructionist justices was seen not as a move to help the people but rather as the beginnings of a dictatorship, or at least the erosion of the Constitution. (To which I say--it is a weak dictator who loses a battle in parliament, and it is a strange electorate that sees a minor change in the composition of the least important branch of government as a threat to liberty, but which happily accepts the AAA, NRA, CCC, WPA, and other novel instruments as necessary, proper, and untroubling.)

Bush and his fellows have worked hard at dismantling both of FDR's legacies, from the system of American postwar internationalism that Truman completed on his predecessor's behalf and the prewar domestic paternalism that FDR adopted in the course of combating the Great Depression. Here, at least, is one part of Roosevelt's legacy that Bush and the Republicans will find congenial during the combative term ahead of us.