FACT CHECK: CNN is Wrong, Founders Expected Chief Justices to Live Past 50

A combination of historical illiteracy and political greed led to this misstatement by CNN legal analyst Jeffrey Toobin. 

CNN legal analyst Jeffrey Toobin had a novel argument Tuesday for why Supreme Court nominations have become stiffer political battles in recent years.

Former U.S. Acting Solicitor General Neal Katyal said the confirmation fight for President Donald Trump’s nominee Judge Brett Kavanaugh is a "big deal" because he will be able to serve for decades if confirmed. After Katyal named some of the expansive rulings from retiring Justice Anthony Kennedy, Toobin said the current norm defies how the Founding Fathers envisioned Court nominations.

"When the Constitution was written in the late 18th century, people were expected to die in their 50s," Toobin said. "The Framers never contemplated that these terms would regularly go to 30-plus years as they do now."

Limited terms for Supreme Court justices is the current hot new argument by the left. But Toobin's claim is completely wrong.

Toobin confuses average lifespans in a society rife with war and disease with expected lifespans for members of the upper classes. The Founders did not expect to die in their 50s. Nor did they expect Supreme Court justices to do so.

John Jay, the first Chief Justice, died at 83. John Rutledge, the second justice and second Chief Justice, did die at 60. But William Cushing, one of the original 6, served out a 20 year term and died at the age of 78. James Wilson, a Founding Father, died at 55. James Iredell died at an early age, however, John Blair Jr. lived until 68. 

Averages is the key word here.

The Founders were not savages baffled by the implausible idea that a man might die in his 80s. Jefferson and Adams were particularly long-lived. After the shaky period of the early years when justices served short terms for political and personal reasons, extended terms became commonplace. But what is truly significant is that the Founders were not worried about lifetime appointments because the Supreme Court served a judicial role. It was only when the pernicious doctrine of Judicial Supremacism took hold that the Supreme Court became the supreme power in the land.

Instead of limiting lifetime appointments, let's do away with judicial supremacism and return the judiciary to the function that Thomas Jefferson and Abraham Lincoln believed to be its proper role.

 

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