Tara RossJudicial activism. The issue seems practically omnipresent these days, doesn’t it? Worse, the problem has ripple effects that keep expanding, bringing more and more issues into its wake. Rancorous confirmation battles. Filibusters. Presidents who seek out stealth candidates.

Now, a whole new issue looms on the horizon.

Some commentators have begun to advocate the elimination of life tenure for judges. Implementing term limits will serve, in part, to temper the problem of “political” judges. Or so they say.

Talk about taking drastic action. The U.S. Constitution is a solid and stable document, which has withstood the test of time. It should be amended rarely, cautiously, and only when other options aren’t feasible.

Have the country and the courts changed so much since 1787 that the original constitutional structure is no longer best?

Alexander Hamilton famously articulated the justifications for judicial life tenure in The Federalist No. 78. “[T]he general liberty of the people can never be endangered,” he explained, “so long as the judiciary remains truly distinct from both the legislature and the Executive.” “[T]hat independent spirit in the judges,” he concluded, can best be maintained by the “permanent tenure of judicial offices.”

In other words, the judiciary must be independent if it is to protect the people’s freedom, and life tenure is a necessary component of this independence. Judges must be free to make decisions solely in accordance with the law. They should not have to worry about potential ramifications on their lives or future careers if a judicial opinion proves to be unpopular with a politically motivated individual.

Opponents of life tenure argue that Hamilton ’s rationale is out-of-date. They emphasize that modern courts address a wider range of socially significant issues than their predecessors. Moreover, judges live longer. This combination of factors, opponents argue, makes political judges more dangerous. Term limits will control unprincipled judges.

Obviously, judges do live longer, and they address more important issues. But such factors increase, rather than decrease, the need for life tenure.

Courts that hear more and harder issues must take extra care to be non-political. They must also take extra care to be independent. Without the latter, the former is impossible. Moreover, a politicized judiciary is not inevitable, and Americans should not concede the point so easily, thinking that the best they can do is to give their “political” judges short tenures. Instead, judges who have demonstrated an ability to act in a non-political fashion must be identified and appointed. Once on the bench, these judges should be given the protections that they need to act in accordance with the law, without fear of ramifications from political interests.

Without life tenure, judges (particularly longer living judges) are more likely to seek secondary careers after their time on the bench. Such judges might be pressed to think about the impact of their rulings on their post-court career aspirations. The Constitution offers them protection. They should not be stripped of it.

The boundaries between the judiciary and the other branches of government can be breached in one of two ways. First, the judiciary may impinge on the other branches. Such behavior has become all too common in recent years, as judicial activism has increasingly become a problem. Second, other branches of government may intrude upon the judiciary. To date, judicial life tenure has helped to prevent this latter sort of breach from becoming a serious or consistent issue.

A judiciary that treads into the legislative sphere is obviously a problem. But just as the legislative branch must be protected from an overextending judiciary, so the judiciary must be protected from an overreaching legislature or executive. A new breach by the legislative or executive branch into the judicial sphere will cause matters to worsen. It will not cure the original overextension by the judiciary.

Two wrongs do not make a right.

Certainly, the judiciary must be brought back within its appropriate boundaries. Presidents should appoint judges with long track records of faithfulness to the law. Voters and elected officials alike should become more educated about the proper role of judges so they can hold their elected officials accountable to appoint or confirm non-political, originalist judges.

Once the judiciary has been restrained, all future boundary violations between the branches must be stopped. Life tenure is one of the few mechanisms that allows the judiciary to protect itself against intrusions from the other branches of government. It should be retained at all costs.

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