What Would Justice Brennan Do?

The achievement, by Justice Clarence Thomas earlier this month, of 34 years on the Supreme Court bench is for millions an occasion of celebration — but not for a senior fellow at the Brennan Center for Justice, Jesse Wegman. In an op-ed in the Times, headlined “Three Decades on the Supreme Court Is Too Long,” Mr. Wegman contends that Justice Thomas has overstayed his welcome and that “no one should hold so much power for so long.”That would have shocked Justice Brennan. The parchment, after all, plainly ordains that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,” meaning that impeachment is the only path to removal. It’s a sentiment that Brennan shared emphatically. The liberal lion after whom Mr. Wegman’s employer is named, Brennan himself served on the court a full 34 years without the Brennan Center cavilling. Brennan hardly seemed abashed of his own lengthy tenure. In 1987 the journalist Bill Moyers asked the justice “what do you think the Framers expected of you, William J. Brennan, Jr., sitting on that court?” The justice, whom Justice Antonin Scalia called “probably the most influential of the 20th century,” responded by extolling the importance of an “independent judiciary.” He noted that the justices’ “salary, thank goodness, can’t be reduced.”Brennan went on to explain that the justices can’t be coerced “in any other way. We, in effect, have life tenure in the federal judiciary. It’s ‘during good behavior,’ actually is the wording, but that’s what it’s come to mean, a life tenure. And the whole reason for setting it up that way was that they wanted a judiciary in which they could have confidence that judgments of the Constitution” would be impartially decided.Moyers asked Brennan if he reckoned that the Framers intended to insulate justices “from the pressures of politics so that you could follow the light of reason?” Brennan responded that not only were they “insulating us from politics, but they were even more so insulating us from reprisals at the hand of a majority when we had to hand down decisions in favor of minorities or individuals which did not have majority approval.”Mr. Wegman argues that since Justice Thomas joined the bench when “text was a noun and not a verb,” he is past his judicial expiration date. Huh? He insists that term limits for justices “can be imposed through federal law,” smuggled in under Congress’s constitutional remit to manage the size of the court. After 18 years, Mr. Wegman imagines, justices would retreat to senior status so as to avoid “multigenerational tenures” and “actuarial quirks.”Mr. Wegman’s case for term limits comes as Vice President Harris last week proposed a “no-bad-idea brainstorm” for Democrats. Her “expanded playbook” features the “idea of Supreme Court reform, which includes expanding the Supreme Court.” A half-century ago the Times asked Brennan if the start of his 30th year on the court was “a particular time for reflection?” The justice answered “No. It is another term with a lot of work to do.”

What Would Justice Brennan Do?

More from the New York Sun

‘Top Gun’ at 40: The Real Story Behind the Blockbuster That Sealed Tom Cruise’s Stardom

Justice Alito’s Duty To Sit

Progressive Candidates in Colorado Call for Democratic Governor’s Impeachment

More from the New York Sun

‘Top Gun’ at 40: The Real Story Behind the Blockbuster That Sealed Tom Cruise’s Stardom

Justice Alito’s Duty To Sit

Progressive Candidates in Colorado Call for Democratic Governor’s Impeachment

Women’s Sports Podcasts Are Fueling the Next Media Gold Rush

Trump Drops IRS Lawsuit as DOJ Creates $1.776 Billion ‘Anti-Weaponization Fund’

New York Times Reporters ‘Exasperated’ by Column Claiming Israeli Abuse of Palestinian Prisoners, ‘Suspicious’ of Sourcing

Israel Reportedly Jams Gaza Flotilla’s Radio With Britney Spears Hit

Judge Throws Out Some, Permits Some of Evidence Collection in Mangione Trial