On life tenure, and its drawbacks

Stephen Breyer does the right thing. Others should be spared his burden of decision. We should end lifetime appointments to the Supreme Court.

At left, Oliver Wendell Holmes Jr. in early 1926, when he was 84 years old and still had six years ahead of him on the Supreme Court. At right, William Howard Taft, then age 68, the slimmed-down former president who had become Chief Justice. Four years after this photo was taken, Taft resigned from the court and then died within a month. Holmes outlived him by five years. (Getty Images)

This post is a quick response to news today that Stephen Breyer will step down from the Supreme Court, at age 83 and after more than 27 years as an Associate Justice.

This is a wise decision by Breyer. The nation owes him thanks—for his years of service, and for his taking control of how they would come to an end.

The decision would have been wiser and more welcome had he announced it six months earlier, at the close of the Court’s previous term

Or if it had come before publication of Breyer’s ill-received book last year, The Authority of the Court. That was noted for its out-of-touch contention that the main threat to the Court’s legitimacy was any hint that its members ever thought about politics.

(The Court’s newest arrival, Amy Coney Barrett, also advanced this “we never think about politics” claim in a speech at the Mitch McConnell Center at the University of Louisville last fall, less than a year after McConnell had pushed through her nomination on an election-eve vote. Her argument, and Breyer’s, were presented differently but were equally convincing. Which is to say, not at all. Clarence Thomas, whose wife, Ginni, has praised groups involved in the January 6 insurrection, has also taken offense at the idea that party politics could play any role in the Court’s decisions.)

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But for Breyer, better late than never. He has avoided the foreseeable and history-changing mistake Ruth Bader Ginsburg made, in imagining oneself both irreplaceable and, in the near term, immortal. He has ensured that his legacy will be more about what he did on the bench, and less about the way he left it.

I mention this because it raises other questions about the inevitably painful relationship between the open-endedness of roles in society, and the finitude of any one person’s life. I write this as a member of the dreaded early-Boomer cohort—age 72, born after every president except Obama, but born before some 90% of the current U.S. population.¹ Ever since I turned ten, I’ve ceaselessly wondered: Where did the time go? How did I get so old, so fast? Now it’s serious.

Here’s the conflict, as I see it—and the resolution. Individuals want to last forever. Institutions understand that no individual can. It’s a fundamental tension, but one that sensible rules can ease.

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1. For individuals, the wisest course is ‘rage, rage against the dying of the light.’

We all live in the moment, and don’t have tomorrow guaranteed, let alone next year. The more time goes on, the more I respect those who turn their energies and passions into living every day, and trying every day, as if there were no tomorrow. Because there might not be:

• My late father, perhaps the most energetic and relentlessly curious person I have ever known, was required by his small-town medical partnership to step down as an on-call member of the staff when he turned 65. He spent his next 18 years as a web developer, a painter and sculptor, a cowboy and mounted-police-force member, and in other ways doing whatever he could. Until his sudden all-systems failure, at age 83.

• Not long before the pandemic, I attended a memorable live session of the Esri User Conference, in San Diego, with some 20,000 people in the crowd. On stage were: the late biologist E.O. Wilson, then nearing age 90; the anthropologist Jane Goodall, a few years younger; and my hometown friend Jack Dangermond, founder and head of the Esri mapping company, born just after World War II.
  They were talking about urgent efforts to preserve the Earth’s biosphere, in the face of dire threats. Jack Dangermond said impromptu near the end of the session, “The later it gets, the faster we have to move.”
  He was talking about environmentalists in the face of climate threats, but I know that he also meant individuals, in their lives. He spoke for all of them, and he spoke to me.

The longer we’re around, the more we realize that life is unfair. The countless inequities of birth, opportunity, resources, and everything affect how people live their span of years.

Even at the highest levels of privilege, things are not always “fair.” Stephen Budiansky laid this out in his wonderful recent biography of Oliver Wendell Holmes Jr. Until his final months of service on the Supreme Court, at age 90, Holmes was writing trenchant opinions. He had nearly been killed in the Civil War yet lived to age 93.² But one of the Chief Justices under whom he served, William Howard Taft, left the Court when his health deteriorated at age 72. A month later he was dead.

Eight years ago Dr. Ezekiel Emanuel wrote a story in The Atlantic with the exaggerating-for-effect title, “Why I Hope to Die at 75.” It was about the inexorable decline of skills, capacity, possibility, some forms of creativity as the years go on.

It was a fascinating and informative article, and I’m glad he wrote it. But, for me, having always been aware of the clock’s movement, its message was wrong. Every one of us knows where the story of a life leads, and ends. We’ve known this since we were children. It is what mortality means. What most of us don’t know is when, where, or how it ends. So, as each of our circumstances allow, we strain to make the most of the unknowable, and postpone the inevitable.

Including people with lifetime appointment on the Supreme Court, who like the rest of us want to keep going as long as they can.

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2. For institutions, it’s important to keep making room.

Individuals should keep trying, experimenting, and creating, even as they age. Institutions need to keep making room for people just getting their start.

The drama of age, and its consequences, are factors in most fields of life. But in many of them, an individual’s interest in permanence, and an institution’s in change, can coexist.

—Through much of recent history, most people have viewed most jobs as pay-the-bills obligations. They have been delighted to shed them, when retirement benefits or other provisions have freed them for family, travel, and personal pursuits.

—In some competitive fields, the transition is inevitable. Even Tom Brady will have to step aside some day. Even Serena Williams may have reached her limit on the courts.

—In many creative fields, one person’s persistence doesn’t block another’s emergence. Joan Didion wrote into her mid-80s, but that did not stand in any younger writer’s way. Age-bias affects financing and startups. But if people want to start a restaurant, a retail business, or a consulting firm in advanced age—or even run for office—no younger person’s success means they can’t.

What unites most realms of endeavor is that they are open-ended. The more, the merrier. Tony Bennett kept singing into his mid 90s—including duets with Lady Gaga, who is 60 years his junior.

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3. The problem is the zero-sum roles. And the answer is, clear-cut rules.

Tony Bennett could keep singing, and Lady Gaga could start, because entertainment is not “zero-sum.” Yes, there can be only one winner of a particular Grammy or Oscar. But in good times, more people can thrive, all at once.

It’s different in a zero-sum situation, which means: If I have this job, no one else can.

—Electoral office is this way, but there’s a built-in check. You have to keep facing the voters. (No matter how gerrymandered, dark-money-supported, or in other ways skewed the results may be.)

—Military command posts are this way, which is part of why the military (like the foreign service) has such stringent rotational and up-or-out rules. In individual cases they can be unwise or unfair. For the organization, they’re overall a plus.

—Many corporate positions are this way, which is why the field of corporate governance has arisen (for all its lapses and flaws).

—Academia is this way, especially universities with tenured positions. This is a topic beyond my ambitions now—balancing the free-speech protections tenure is designed to preserve, versus opportunities and equity for younger faculty. But whatever its stakes, they are lower than the ones I am about to mention, for the Supreme Court.

—The life-tenure federal judiciary is this way, in that there are a fixed number of seats in the federal system. But the federal District and Circuit courts have worked out a reasonable compromise. This is via “senior status” for older federal judges, which allows them to retain lifetime pay, and sit on cases as they are interested and able, while also opening their seats for younger appointees.

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This leaves us with the great outlier exception, the United States Supreme Court. The nine seats there are lifetime appointments. In them the combination of individual incentive (“This is the most interesting work I could be doing! And I’m just reaching my prime”) and partisan interest (“Let’s appoint somebody really young”) combine in ways that harm both the national and the individual interest:

• National: It makes this increasingly central organ of national policy subject to the whims of accident and fate. Does Antonin Scalia happen to die in Obama’s first term? Or his second? When does Anthony Kennedy find it convenient to step down? Does Ruth Bader Ginsburg’s bet with mortality pay off, or not? How young an appointee can we get through the Senate? And how do we know that person’s medical prospects?

• Individual: It puts too much unreasonable pressure on these nine individuals to balance their own engagement and satisfaction, against larger national larger historical and political forces. Breyer in this past year is a clear example. He still loves what he is doing! But finally he seems to have placed greater weight than Ginsburg on the political and institutional risk.

Most of our other institutions recognize this conflict by establishing rules that take the choice out of individuals’ hands.³ And again, the ones that haven’t yet worked out such rules, including many universities on the tenure front, are not as center-stage in U.S. tensions as the Supreme Court is.

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The way out is for the Supreme Court to change its rules. It’s too much pressure on Ruth Bader Ginsburg — or Stephen Breyer, or Anthony Kennedy, or Sandra Day O’Connor, or any of them — to be responsible for weighing their individual satisfaction, versus the institutional welfare of the court and the country.

—Many airline pilots would like to keep flying forever.

—My dad would have loved to see patients forever.

—Bill Clinton wished he could have run for a third term.

Rules spared all of them the decision, in the long run for the public good. Rules should do so for the Court. Two years ago, in an influential report called Our Common Purpose, the American Academy of Arts and Sciences laid out (among other reforms) the way a fixed-term system could work. The report listed the many strains on the Court, and said:

The remedy: abolish life terms. The Constitution stipulates that Supreme Court justices serve during good behavior, but it does not explicitly establish the type of judicial work done during a life term nor prevent Congress from enacting terms. Federal legislators have the power to enact eighteen-year terms of work on behalf of the Supreme Court, with justices transitioning at the end of the term to the lower courts with undiminished salary for the remainder of their careers. Justices would also have the option of transitioning to senior status. (In the current system, retired Supreme Court justices automatically transition to senior status.)

This change would remove the death-lottery element of luck, in determining which presidents get to make appointments. It would also remove the Ginsburg/Breyer conflict of interest, between individual satisfaction and institutional good.

And it could be achieved by an act of Congress.

Stephen Breyer has done a good thing. He could do another good thing by now advocating for this change.

1. The age distribution charts are interesting. These are from StatisticalAtlas.com.

2. In the summer after he turned 90, Holmes’s health began to fail. A few months later, on January 10, 1932, Chief Justice Charles Evans Hughes came to Holmes, at his house, and told him that his time had come to step down. As Budiansky puts it, “Perhaps relieved to have the decision taken out of his hands, Holmes took it without the slightest hint of resentment or opposition…. and wrote out his resignation on the spot, dated two day later, the twelfth, so he could deliver his final opinion the following day.”

3. For instance:

• Many pilots are at or near their experienced best in their mid-60s. But the FAA and the airlines remove the self-assessment choice from their hands, with an age limit of 65. (Pilots can still fly freight, charter flights, or privately, as long as they keep passing FAA medical and proficiency tests. Just not on the airlines.)

• Many federal judges may also feel wiser and more proficient as years go on. But rules about “senior status” encourage them to give others a chance.

• My dad was probably a better diagnostician in his 60s than ever before. But the clinic and hospital spared him ongoing self-assessment, with their age-65 limit on doctors who would share regular rotations.