The overturning of Roe v. Wade, capsizing federal climate change regulations, and other recent landmark decisions have occasioned a re-thinking of the way members of the nation’s highest court are selected.
The fact that the outcomes run counter to prevalent national public opinion and that the mandates were handed down primarily by justices appointed by a popular vote loser in the presidential election have prompted a number of proposals for reform in the way justices are put in a position to render such decisions.
House Judiciary Chair Jerry Nadler, for example, has introduced the Tenure Establishment and Retirement Modernization Act. It would authorize the president to nominate a justice in the first and third years after a presidential election and set a maximum tenure of 18 years. It would also move the longest serving justice to semi-retirement or senior status.
This and similar proposals face daunting political and constitutional hurdles. But a look at how Maine has attempted to rule the composition of its own crucial third branch of government may offer a guide to how the national dilemma might be confronted.
At the outset of state hood, just over two centuries ago, Maine’s constitution provided for lifetime tenure for its highest court, subject only to “good behavior” a set up that mirrored the federal system. It departed from the national model, however, by setting mandatory retirement at age 70.
The 1828 election and 1832 re-election of Andrew Jackson as president was an impetus for democratic reforms in many parts of the country, particularly in more rural states such as Maine.
Constitutional amendments at the state level including Maine soon followed. Among them was Maine’s Third Amendment enacted in 1839. It did away with lifetime judicial tenure. In its place it provided for seven-year terms but eliminated mandatory retirement. Since justices were eligible for an unlimited number of reappointments this paved the way for some to serve into their ninth decade so long as a governor would make a reappointment.
Maine law – as with the nation’s – allows the legislative branch of government to set the number of justices. This is a prerogative that Maine’s legislature has exercised a bit more than the federal government.
It’s also a feature that is sometimes – as at the national level – occasioned by political conflict.
Nationally, the first change in the Court’s size occurred in 1801. This was when outgoing President John Adams and a Federalist Congress reduced the number of Supreme Court seats from six to five so as to mute some of incoming President Thomas Jefferson’s appointing authority.
The first occasion Maine’s legislature attempted to do the same was in 1847. In this instance it expanded rather than reduced the number. The size of our Court went from three to four, largely over workload concerns of justices that were attempting to juggle both trial and appellate responsibilities.
In the following decade, in the run-up to the Civil War and when issues over Maine’s first-in-the-nation liquor prohibition laws were also paramount, political considerations sometimes came into play not only in adjusting the number of justices – something that occurred five times in the period from 1852 to 1857 – but also in the appointment process itself. Despite an overall practice of Maine governors both before and since to reappoint sitting justices several were refused a second seven-year term in the 1848 to 1860 period.
In this decade the tenure of lower court judges in Maine was also becoming less definite. In 1856 the constitution was amended to provide for direct popular election of both county probate as well as municipal judges. Though municipal courts – now roughly equivalent to today’s district courts – reverted to an appointive position in 1875, probate judges remain popularly elected and indeed since the 1850s to this day most states popularly elect at least some of their judges.
A watershed moment in the makeup of Maine’s Supreme Court next occurred in 1911. This was the first time in 30 years Democrats had wrested control from Republicans for both the legislature and the governorship. (As with most elections in this era the dominant issue had been the enforcement of Maine’s prohibition laws, the “dry” GOP being in favor with “wet” Democrats opposed.) Democrats in the 1911 session enacted an amendment to the retirement law that in effect would force some of the GOP members of the court to give up their seats. This was because the new law required any justice serving beyond his 71st birthday to forfeit his retirement benefits. The law thus gave Democrats the opportunity to soon name more members of the court within the mere two-year term of newly-elected governor Frederick Plaisted. Since only one of the eight justices were Democrats this was of course a coveted objective.
The count at the end of Plaisted’s term: three Democrats and five Republicans.
Meanwhile, regulating the size of the court would no longer be a tool of partisanship. To be sure, the size was phased down from eight to six in 1930. But this change arose from the creation of a state-wide Superior Court system that freed up the highest court from having to regularly preside at lower court proceedings.
The court’s workload and a re-structuring of the confirmation process gave rise to the most recent change. This occurred with one implemented in 1977 that increased the membership from six to seven. At the same time as a Republican senate and the John Martin-dominated Democratic house substituted a legislative-based confirmation process for approving judicial nominees and did away with the Governor’s Executive Council it also created a seventh justice. This was despite the fact that the legislature was bestowing upon its primary antagonist, the conservative Independent Jim Longley, the authority to make the appointment. (He in fact named a prominent Republican, David Nichols, to the position.)
The age 71 mandatory retirement provision was repealed in 1984. Nevertheless, the combined effect of both seven-year terms and mandatory age 71 retirements – though concepts originating at least partly in the political realm – did accomplish something of which the nation as a whole has been deprived. This is a means of providing an option of replacing judges whose ideology may be either profoundly outmoded or unpopular.
Paul Mills is a Farmington attorney well known for his historical understanding and analyses of public affairs in Maine. He can be reached at email@example.com.