Why Professor Hemel is Wrong About Life Tenure for SCOTUS

By Eric SegallProfessor Daniel Hemel of the University of Chicago has written a thoughtful essay in Politico on why allowing Supreme Court Justices to serve for life, while raising some problems, is not as bad as the two potential cures that I and many other scholars have advocated (term limits or a mandatory retirement age). Although Hemel raises some strong arguments, they are not ultimately persuasive.Hemel does a good job summarizing the problems with life tenure though he leaves out two major ones. The first issue is that, in Hemel's words, "some justices really have clung to their positions long after their mental faculties have left them." He gives many examples: "Justice Henry Baldwin remained on the court for nearly a dozen years after his 1832 hospitalization for “incurable lunacy.” One of Justice Nathan Clifford’s colleagues described him as a “babbling idiot” in the final years before his death in 1881. Justice…

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