By Myrna El Fakhry Tuttle

Reposted from LawNow 45(2) with permission

The death of Justice Ruth Bader Ginsburg, in September 2020 at the age of 87, and the appointment of Justice Amy Coney Barrett to the Supreme Court of the United States, where she can serve for decades, prompted me to write this article.

The Supreme Courts of Canada and the U.S. are the courts of last resort. They should decide cases without fear of punishment or influence by the executive or legislative branches. In order to sustain the rule of law and hold powerful individuals and government agencies accountable, Supreme Court justices should have:

1.     security of tenure to guarantee that they will not be removed from office except in specific situations, and

2.     financial security where judges are paid enough so they are immune from external influences.

These two elements are crucial for an independent judiciary in which the public has confidence.   

In Canada and the U.S., Supreme Court justices have financial security and security of tenure but they cease to hold office in two different ways.

In Canada

Section 101 of the British North America Act of 1867 (now Constitution Act, 1867) gave Parliament the power to establish a “General Court of Appeal for Canada.”  In 1875, the Supreme Court Act created the Supreme Court of Canada.

The Supreme Court consists of nine judges, including a chief justice called the Chief Justice of Canada (section 4(1) of the Supreme Court Act). All judges are appointed by the Governor in Council (section 4(2)) and must have been either a judge of a superior court or a member of at least ten years’ standing of the bar of a province or territory (section 5).

A judge on the Supreme Court holds office during good behaviour until they retire or reach the age of 75 years. They can be removed before that time by the Governor General on address of the Senate and House of Commons (sections 9(1) and (2) of the Supreme Court Act). They “can be removed for incapacity or misconduct in office before that time”.

However, mandatory removal at age 75 was not always the case. Judges in Canada used to have life tenures. The old section 99 of the British North America Act read: “the Judges of the Superior Courts shall hold Office during good Behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.” Superior Court justices were protected from mandatory retirement until the British North America Act was amended in 1960.

When it comes to Supreme Court justices, the Supreme Court Act was amended earlier, in 1927, to impose a compulsory retirement age of 75. The change applied to current and future justices.

The reason behind the change was that Prime Minister Mackenzie King’s government believed age had become a negative factor for some justices of the Supreme Court in the 1920s. Supreme Court Justice John Idington was 86 at the time and then-prime minister King considered him senile. Justice Idington’s poor health, absenteeism and refusal to resign created a sense of urgency and helped move along the amendment.

According to the Bingham Centre for the Rule of Law:

Security of tenure serves as a bulwark against external pressure and ensures that judges do not face conflicts of interest arising from a possibility of renewal.

…

There is also the spectre of the judge of advanced years and deteriorating mind who refuses to resign or accept voluntary retirement. In many jurisdictions the removal of a judge on grounds of capacity requires the same onerous procedure to be followed as removal for misconduct. A mandatory retirement age helps avoid such costly and acrimonious proceedings.

In Felipa v Canada (Citizenship and Immigration), 2011 FCA 272, the Federal Court of Appeal held that justices over the age of 75 are too old to decide cases.

It is worth mentioning that in addition to a compulsory retirement age, the drafters of the Charter of Rights and Freedoms (the Charter) in 1982 included a “notwithstanding clause” (section 33 of the Charter) so that the Supreme Court does not have an absolute power. This clause allows a provincial legislature or Parliament to override a court decision by reinstating a disputed law or regulation the Court considered contrary to some sections of the Charter. The U.S. does not have such a clause in its Constitution.

In the U.S.

Article III, section 1 of the 1787 Constitution states:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Article II, section 2 of the same Constitution states that “the President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court…” The Constitution does not specify the number of Supreme Court Justices; the number is set by Congress. Since 1869, there have been one Chief Justice and eight Associate Justices.

The Framers of the U.S. Constitution relied on English common law to interpret “during good behaviour” by stating justices can serve as long as they wish, only to be removed through impeachment. Before 1701, the tenure of judges in England was determined by the Crown, which had the right to remove them. In 1701, Parliament enacted legislation forbidding the Crown from removing judges by allowing them to serve Quamdiu se bene gesserint (Latin term for “as long as they conduct themselves well”) and kept the right to remove judges for itself.

The good behaviour clause ensures judges are independent from external pressure. In The Federalist No. 78, Alexander Hamilton stated that judicial independence “is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”

Article III, section 1 does not specifically state that judges have “lifetime appointments”. Congress can remove judges if they no longer meet the “good behavior” requirement. Otherwise, they can remain in office for life. The Supreme Court acts as a check against the power of Congress and the President. Therefore, article III protects the judiciary from the other two branches by making the tenure of federal judges permanent and not temporary.

However, there have been many critics of lifetime tenure where justices stay in office for a long time after they have become too old to do their job properly and have lost touch with present times. Politicians, scholars and organizations have been suggesting that Supreme Court justices should have an 18-year limit term (this is the most popular proposal). This proposal allows for appointments every two years to balance the influence presidents can have on the Court’s structure. Also, according to this proposal, senior justices could sit on lower federal courts as many retired justices have done.

Calabresi & Lindgren stated:

The eighteen‐year non-renewable term … is more than long enough to guarantee judicial independence without producing the pathologies associated with the current system of life tenure.  

Even current Supreme Court Justices Breyer and Roberts have expressed concern about lifetime appointments and support setting a term for judges.

The reason behind those proposals is that lifetime appointment was made to insulate judges from any external pressure. But in modern times, judges have been serving well into their 70s, 80s, and even 90s. Professor Mark Tushnet stated: “The existence of tenure until death or choice is extremely rare around the world.” He added: “People didn’t live as long back then, and, as Hamilton wrote, few ‘outlived the season of intellectual rigor.’”

On September 29, 2020, three members of the House of Representatives introduced a bill to impose term limits for Supreme Court justices. The bill is similar to the proposal mentioned above where justices will be appointed for non-renewable 18-year terms. After that term, “appointees would become senior justices able to temporarily rejoin the court in the event of an unexpected vacancy.” The bill is the first effort to establish term limits by statute without amending the Constitution.  

These proposals and bill talk about term limits and not a mandatory retirement age. With only a retirement age, presidents can pick nominees in their 30s to make sure they serve on the bench for a long time. An 18-year term at the Supreme Court would “restore limits to the most powerful, least accountable branch of American government.”

Conclusion

While Canada has imposed a compulsory retirement age since 1927 for Supreme Court justices, the U.S. still has lifetime appointments. Most democracies in the world have either a compulsory retirement age or a term limit for their judges. Life tenure would have made sense in the seventeenth and eighteenth centuries but may not so much anymore.

Lifetime appointment leads to less frequent vacancies on the bench. And when there is a vacancy, the fight to appoint a judge becomes much more intense and politicised. Life tenure motivates justices in the U.S. to remain in office until there is a president of their own political party to ensure a same-party replacement. In Canada, judges retire at 75 regardless of which party is governing.