Page:EO 14023 Commission Final Report.pdf/135



Many countries that impose term limits or retirement ages on judges of their highest courts also impose constraints on the post-service activities of those judges. There are two main reasons for imposing such constraints. The most important is to avoid undermining the fact and appearance of judicial independence by eliminating the likelihood of Justices’ altering their behavior in their last years of their service on the Court to enhance certain post-service employment opportunities. In addition, certain post-service positions might be detrimental to the public’s sense of the integrity and professionalism of the Court. At the same time, it is important that former Justices who choose to retire from judicial service altogether after their term ends have appropriate opportunities to pursue other professional interests.

In order to address these concerns, the amendment could specify that at the end of their service, Justices have the option of retaining the office of an Article III judge and remaining available to serve by designation on any of the lower federal courts; to serve by designation on the Supreme Court if a Justice in an eighteen-year seat vacates that seat prematurely; or to perform other federal judicial functions. The amendment could also specify that upon completion of their terms, Justices would continue to receive a pension for life commensurate with their salaries on the bench. But these two provisions would not solve the problem fully. With term limits, some Justices would complete service at younger ages than the current average age at which Justices leave the Court. Some might prefer to relinquish their Article III commission and work in other capacities.

Former Justices who have chosen to retire fully from the bench could be barred from certain kinds of employment for a certain period of time. The prospect of high-level government employment is a particular concern, given the risk of public perceptions that a Justice will have ruled in certain ways late in their term to curry favor with the sitting government. Retired Justices could be prohibited from involvement in legal matters that had been the subject of proceedings before the Court and, perhaps, closely related matters. Former Justices could also be barred from working on any matters before the Court. Service in roles such as mediator, arbitrator, or law school lecturer, on the other hand, are most compatible with the role of a retired Justice. While some of these concerns should be addressed in any constitutional amendment—such as whether term-limited Justices retain the option of remaining Article III judges—others might be appropriately handled through legislation.