Supreme Court nominee John Roberts, holding one lifetime appointment and seeking another, argued against them as a young lawyer in Ronald Reagan’s White House.
At age 50, Roberts could influence federal law for many years to come. Two decades ago, however, he reasoned that long-entrenched judges could fall out of step with the society they serve. Limiting terms of federal judges would ensure a fresh supply of talent while guarding against “ivory tower” elitism, he wrote.
The Constitution “adopted life tenure at a time when people simply did not live as long as they do now,” Roberts wrote in an Oct. 3, 1983, memo to White House Counsel Fred Fielding that is now on file at the Ronald Reagan Presidential Library.
“A judge insulated from the normal currents of life for 25 or 30 years was a rarity then but is becoming commonplace today,” Roberts wrote. “Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.”
Roberts, then 28, offered his views while analyzing a Senate resolution that called for limiting members of the federal bench to 10-year terms, after which they could be reappointed.
The Reagan administration opposed the proposal, arguing in part that lifetime tenure protected judicial independence. Though Roberts did not formally object to that position, he saw merit in set terms. He accepted an open-ended federal appeals court seat in 2003.
Ending lifetime tenure would “provide a more regular and greater degree of turnover among the judges,” Roberts wrote 20 years earlier. “There is much to be said for changing life tenure to a term of years, without the possibility of reappointment.”
In the same memo, Roberts railed against what he described as an overreaching federal judiciary. He suggested that lifetime tenure was defensible only if judges stuck to interpreting _ rather than making _ law. It was a frequent complaint through his writings of the time.
“It is certainly appropriate to protect judges from popular pressure if their task is limited to discerning and applying the intent of the framers or legislators,” he wrote. “The federal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches.”
His criticisms weren’t limited to lifetime tenure. Writing to Fielding earlier that year, Roberts scoffed at a proposal by then-Chief Justice Warren Burger to lighten the Supreme Court’s caseload.
Burger suggested creating a “special temporary panel” of federal appeals court judges to hear cases referred by the Supreme Court.
In a Feb. 10, 1983, memo, Roberts wrote that “a new tier of judicial review is a terrible idea.” The justices were to blame for taking too many cases and issuing “opinions so confusing that they often do not even resolve the questions presented,” Roberts wrote.
To cut its caseload, he suggested that the high court consider “abdicating the role of fourth or fifth guesser in death penalty cases.”
“So long as the court views itself as ultimately responsible for governing all aspects of our society, it will, understandably, be overworked,” Roberts wrote. “A new court will not solve this problem.”