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Despite the attention that presidents and senators pay to Supreme Court nominations, nominees do not always turn out as forecast. Political scientists have charted the phenomenon of “ideological drift” and have concluded that it is common—even, perhaps, the rule rather than the exception, with some justices shifting ideological direction more than once. The leading example in recent decades is that of Harry A. Blackmun, appointed in 1970 by President Richard Nixon as a reliable conservative who gave every sign of being an ideological soul mate of his boyhood friend, the recently appointed chief justice Warren E. Burger. Yet by the time Blackmun retired twenty-four years later, he was the most liberal member of the Court—to be sure, a more conservative Court than the one he had joined, but his leftward migration on nearly all important issues was striking. John Paul Stevens, another Republican appointee, became more liberal during his tenure of more than thirty-four years. To a lesser degree, so did Sandra Day O’Connor and David H. Souter, likewise Republican appointees. The category of justices who became more conservative while on the Court appears much smaller. That is perhaps because no Democratic president made a Supreme Court nomination from 1967 until 1993, leaving a very small recent pool of justices who might be in a position to drift to the right. Arguably the most recent to have done so was Byron R. White, appointed in 1962 by President John F. Kennedy.
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How can substantial changes in outlook be explained among a group of mature, professionally experienced individuals?(Blackmun was sixty-one when he was named to the Court, and had been a federal appeals court judge for eleven years.) Robert Jackson, observing the Court as FDR’s attorney general, posed a version of that question in a book he published shortly before his own appointment as a justice in 1941.“Why is it,” he asked in The Struggle for Judicial Supremacy, “that the Court influences appointees more consistently than appointees influence the Court?” Indeed, Jackson himself changed while on the Court: initially a strong supporter of presidential power, he grew skeptical of its exercise, and in 1952 wrote an opinion, still widely cited today, setting out a framework for confining a president’s assertion of authority (Youngstown Sheet & Tube Co. v. Sawyer).
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As Jackson’s question suggests, the experience of serving on the Court is a unique and powerful one, providing new perspectives that can dislodge preconceived notions—for some, but obviously not for all. The author of a study of the twelve Republicanappointed justices between 1969 and 2006 found a strong correlation between prior service in the federal executive branch and ideological stability as a Supreme Court justice. Half of the group had held substantial executive branch positions before joining the Court while half had not. Only those without such experience drifted leftward. Another scholar, going back to Earl Warren’s appointment in 1953, pointed to residency at the time of appointment as the distinguishing feature between those who exhibited “voting change” on civil liberties issues and those who did not. Those who were living in Washington, DC, at the time of their nomination tended not to change, while those who came to the Court from outside the Beltway became more liberal. Of course, there is substantial, although not complete, overlap between those with executive branch experience and those living in Washington. Perhaps the challenging experience of a midlife move to a new city makes a new justice even more open to new perceptions.
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The Constitution makes federal judges, along with the president, vice president, and “all civil officers of the United States”subject to impeachment for “high crimes and misdemeanors.”Although a dozen judges of the lower federal courts have been impeached by the House of Representatives, convicted by the Senate, and removed from office following criminal convictions, Congress has never removed a Supreme Court justice. The House voted in 1804 to impeach Justice Samuel Chase on charges of sedition. Chase was a fervent partisan of the former president, John Adams. He had angered the newly empowered Jeffersonian Republicans by his speeches and particularly by a grand jury charge he delivered as a circuit judge that criticized President Jefferson. Chase had, however, committed no crime, and the Senate acquitted him. He remained on the Court for another seven years. The episode established the principle that disagreement with a judge’s judicial acts is not a valid reason for impeachment.
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Nonetheless, there were calls during the 1960s for the impeachment of Chief Justice Earl Warren, and in 1970 the Republican leader of the House of Representatives, Gerald R. Ford, led an effort to impeach Justice William O. Douglas, an outspoken liberal. Ford’s campaign against Douglas, backed by the Nixon administration, centered on the justice’s activities off the bench, including his multiple marriages, publication of a book and magazine articles, and service on the board of a private foundation. When asked to explain how these activities amounted to impeachable offenses, Ford replied that “an impeachable offense is whatever a majority of the House of Representatives considers it to be in a given moment of history.” The House Judiciary Committee investigated the complaint against Douglas at length but declined to recommend impeachment, and the effort died. Douglas retired in 1975 after a tenure of thirty-six years, the longest in the Court’s history. Through an odd twist of fate, Gerald Ford had become president a year earlier when Richard Nixon resigned in the face of impeachment.
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4. William O. Douglas, photographed on March 20, 1939, the day of his nomination to the Supreme Court by President Franklin D. Roosevelt. At the age of forty, Douglas was the youngest man ever named to the Court, and he served the longest, retiring in 1975 after thirty-six years.
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Finally, another word about the incipient debate over the merits of life tenure for Supreme Court justices. The debate is largely confined to the legal academy and may well never go farther, but it is illuminating of demographic trends and perceptions. When the Constitution was being debated, life tenure for judges was not a given. Thomas Jefferson opposed it, arguing for renewable terms of four to six years. But the Framers chose to protect judicial independence by a guarantee of tenure “during good Behavior” as well as by providing that a judge’s salary could not be reduced.
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Today, however, criticism comes from both the Right and the Left, from scholars who argue that when justices linger well into advanced old age in order to time their retirements according to political loyalty, and when presidents try to project their legacies far into the future by seeking ever younger nominees, life tenure exerts a distorting effect on both the institutional life of the Supreme Court and the political life of the country. Certainly justices are living longer and staying longer. Between 1789 and 1970, justices served an average of fifteen years. Between 1970 and 2005, the average jumped to more than twenty-six years. The Court went without a vacancy for eleven years between 1994 and 2005, the longest period without turnover since the 1820s.
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Removing life tenure directly would require a constitutional amendment, an arduous if not impossible task. So some advocates of change have proposed a statutory work-around that would achieve much the same result: continuing to appoint justices for life, but establishing that the term of active service would be eighteen years. A justice would then move into the semi-retired ranks, similar to the system in place for the lower federal courts, available to be called upon to break a tie when only eight justices would otherwise be available to sit, or for other judicial duties. The opening for a position as one of the nine active justices would then be taken by a new appointee. Under this system, a new justice would be appointed every two years. In other words, every president would get two appointments, thus regularizing the current randomness with which vacancies now occur. No president would have to suffer the drought that Jimmy Carter faced, without a single Supreme Court vacancy to fill during his presidency.
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The critics of life tenure note that all other constitutional democracies, while borrowing much from the American example, including the norm of judicial independence, have rejected life tenure for their high court judges. Canada, Australia, Israel, and India, for example, impose fixed age limits, while the constitutional courts of Germany, France, and South Africa have fixed terms. Among the fifty states, only Rhode Island has placed no limits on the tenure of the judges on its state supreme court.
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The critique of life tenure may never gain public traction in the United States. But it poses the provocative question of where protection for judicial independence most reliably lies: on paper alone, or in a country’s culture of learned expectations from courts that in turn preserve public trust with reasoned judgment.
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美国最高法院通识读本 [:1702690385]
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美国最高法院通识读本 Chapter 4The chief justice
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Article III, the judicial article of the Constitution, does not even bother to mention a chief justice. Clearly, the Framers intended there to be one, but we can derive that intention only by inference from the text of the Constitution itself—from the explicit requirement in Article I for the chief justice to preside over the Senate trial in any impeachment of a president. Chief Justice William H. Rehnquist, asked later to describe his role in the 1999 impeachment trial of President Bill Clinton, replied with a smile:“I did nothing in particular, and I did it very well.”
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No matter what the Framers envisioned, no one would maintain today that the chief justice does nothing in particular. The office has grown enormously over the intervening centuries, both by statute and custom. A 2006 study compiled a list of eighty-one separate provisions by which Congress has conferred on the chief justice a specific duty or power. These range from directing the purchase of law books by the Library of Congress to appointing the eleven judges of the special court that authorizes the government to conduct foreign intelligence searches and wiretaps. The chief justice is, by law, a trustee of the National Gallery of Art and the Smithsonian Institution; presides over the Judicial Conference of the United States, which sets policy for the federal judiciary; and certifies the disability and eligibility for early retirement of another justice should that occasion arise.
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The single most important power the chief justices exercise may still be to cast one of the nine votes that determine the outcome of a Supreme Court case. To the sixth chief justice, Salmon P. Chase, that was the only function that really mattered. “The extent of the power of the Chief Justice is vastly misconceived,” Chase wrote in a letter in 1868. “In the Supreme Court he is but one of eight judges, each of whom has the same powers as himself. His judgment has no more weight, and his vote no more importance, than those of any of his brethren. He presides, and a good deal of extra labor is thrown upon him. That’s all.”
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Even if the chief justice is simply first among equals on the bench, a 21 st century perspective on the job requires a broader appreciation of its power. It is more accurate to think of the chief justice today as a CEO, chief executive not only of the Supreme Court but of the entire judicial branch. The typical career path to the federal bench offers little preparation for such a multifaceted role. The best-prepared chief justice of the past century was undoubtedly William Howard Taft, the tenth chief justice, who had also been the twenty-seventh president. Taft, who served from 1921 to 1930, was, not surprisingly, one of the most effective chief justices.
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Prior service on the Court is also useful preparation, although uncommon. Of the seventeen men who have served as chief justice, only four previously served as associate justices. Three—Rehnquist, Edward Douglass White, and Harlan Fiske Stone—received their promotions while they were sitting on the Court.(John Rutledge, George Washington’s failed chief justice nominee, is not counted on this list because he never took the seat to which he had been confirmed as an associate justice.) The fourth former associate justice, Charles Evans Hughes, had resigned from the Court in order to run for president in 1916. Fourteen years later, on the death of Chief Justice Taft, President Herbert Hoover chose Hughes as the next chief justice.
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5. Chief Justice William Howard Taft, pictured at the start of his tenure in 1921. He is the only person to have served both as president and as a member of the Supreme Court.
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Even if previously confirmed to the Court, a nominee for chief justice must receive a separate Senate confirmation and a new commission. As a matter of confirmation politics, that requirement perhaps serves as a disincentive for a president to elevate a sitting justice. As happened when President Reagan selected William Rehnquist for elevation in 1986, the confirmation process can easily turn into a referendum on the nominee’s Supreme Court career so far, as well as on the direction of the Court as a whole.
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The title we use today, Chief Justice of the United States, is obscure in origin. Neither the first Judiciary Act, nor the Constitution itself, says anything more elaborate than “chief justice.” The unwieldy “Chief Justice of the Supreme Court of the United States”later came into use. In the 1860s, Congress began using the current title, which appeared on Melville W. Fuller’s commission as chief justice in 1888.