Tyranny of the Minority: Why American Democracy Reached the Breaking Point

by Steven Levitsky

The Constitution also explicitly stated that federal judges could enjoy lifetime tenure (conditional on “good behavior”)—an idea that had emerged in England in response to judges’ excessive dependence on the Crown. The framers’ decision not to impose term limits or a mandatory retirement age should not be surprising. They were not concerned about long tenures on the court. Life expectancy was shorter at the time of the founding, and importantly, the position of Supreme Court justice lacked the status and appeal that it has today. The court didn’t even have its own building, and in the republic’s early years justices spent most of their time in inns and on the road as they traveled “the circuit.” As a result, there was little expectation that justices would stay in their positions. The first chief justice, John Jay, left his position after 5.5 years to serve as governor of New York. Indeed, the six justices of the first Supreme Court appointed by President George Washington served an average of only 8.3 years, compared with an average of 25.3 years for justices who have left the bench since 1970.