Judicial Retirement and Return to Practice

Abstract

This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.

This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than either fixed terms of service or mandatory retirement. Life tenure promotes institutional independence by safeguarding the judiciary’s ability to exercise autonomy and power with respect to the other branches, and it promotes individual independence by furthering individual judges’ abilities to decide cases free of fear or favor. In both respects, life tenure promotes judicial independence better than either fixed terms or mandatory retirement. Life tenure should also be retained because the proposed alternatives do not satisfactorily redress the asserted concerns about life tenure, but instead risk potentially significant negative consequences to judicial impartiality and integrity as well as independence.

This Article also recommends prohibiting former Article III judges from returning to law practice and legal consulting because both raise concerns for negative effects on judicial independence, impartiality, and integrity. This recommendation is also informed by concern that actual or apparent self-dealing by judges considering post-bench employment threatens the public’s trust and confidence in the courts.

The Article begins by highlighting the recent scholarly debates over fixed terms of service and mandatory retirement for U.S. Supreme Court Justices. Part I also notes the dearth of scholarship on former Article III judges’ return to practice and encourages further debate on this point. In Part II, the Article compares and contrasts judicial retirement and return-to-practice rules and conventions for the Article III and English and Welsh higher judiciaries.

The Article concludes by recommending against fixed terms and mandatory retirement for Article III judges, instead advocating reforms to encourage more, earlier voluntary retirement and the introduction of formal self-monitoring of misconduct and disability by Supreme Court Justices, as is currently done by lower federal courts pursuant to the Judicial Conduct and Disability Act of 1980. Lastly, this Article recommends prohibiting former Article III judges from returning to law practice and legal consulting, given the potential for actual and apparent conflicts of interest.

Keywords: Article III judges, life tenure, retirement