Quahogs. Cabinets. General refusal to use car blinkers. Obey Andre the Giant stickers in the ’90s. There are many unique things about Rhode Island. Here’s one more: Rhode Island is the only State in the Union with life tenure for the five Justices appointed to the Rhode Island Supreme Court. Who knew? I sure didn’t.
Recently, law professor Steven Calabresi penned an op-ed for the New York times about the U.S. Supreme Court nomination process in which he noted that 49 out of 50 states do not give the justices of their highest court life tenure, citing to a balletpedia.org survey of the length of term for each state. Rhode Island is the only state with life tenure; the next closest are two states with mandatory retirement at age 70, and one state with a term limit of 14 years. Professor Calabresi used the point to argue for a constitutional amendment for staggered 18-year non-renewable terms for U.S. Supreme Court justices. (Incidentally, Professor Calabresi presented at the 2019 U.S. District Court conference in Rhode Island – back when meetings happened in person).
Life tenure can promote judicial independence, an admirable component of any legal system, but as many commentators have noted, judicial independence is a major concern even with the protections of life tenure. The tendencies of sitting U.S. Supreme Court justices to retire when a President is in office that aligns with their policy preferences, and the likelihood that a new justice will align very closely with the President’s policy preferences, is not helpful to judicial independence. Heck, the Rhode Island District Court conference that Professor Calabresi attended last year consisted of seven hours of presentations on “Independence and the Courts.” Many lawyers, members of the public, and even the federal judiciary itself seem worried about the state of judicial independence.
The concerns over judicial independence for the U.S Supreme Court are not as acute for the Rhode Island Supreme Court, based on the current legal framework that governs the interstitial nature between state and federal courts. Presently, the Rhode Island Supreme Court (like other state supreme courts) tends to interpret the terms in the Rhode Island Constitution as consistent with similar terms in the U.S. Constitution. For example, the Rhode Island Supreme Court interprets the searches and seizure and double jeopardy clauses in the state constitution as similar to the federal constitution. E.g., State v. Foster, 842 A.2d 1047, 1050 n.3 (R.I. 2004) (stating that article 1, section 6 of the Rhode Island Constitution is “substantively the same” as the Fourth Amendment to the United States Constitution); State v. One 1990 Chevrolet Corvette, 695 A.2d 502, 505 (R.I. 1997) (“we have interpreted our state constitutional prohibition against double jeopardy in a manner consistent with the Federal Constitution . . . so that our inquiry is ultimately the same under either clause.”).
As Honorable Jeffrey Sutton of the Sixth Circuit Court of Appeals has argued persuasively, it doesn’t have to be this way: state supreme courts can assert their own judicial independence by detaching the interpretation of their own state constitutions from the U.S. Constitution. There are some recent signs that the Rhode Island Supreme Court might lean in this direction. E.g., Fed. Hill Capital, LLC v. City of Providence, 227 A.3d 980, 989 (R.I. 2020) (“while it remains this Court’s prerogative to interpret the Equal Protection and Due Process Clauses of the Rhode Island Constitution in a manner that diverges from, and is more protective than, the Supreme Court’s interpretation of the United States Constitution, we would need to be presented with a good reason to do so.”).
At present, most Rhode Island Supreme Court’s decisions that break new ground do not involve the Rhode Island Constitution – they usually address statutes or rules that, for the most part, the General Assembly can overturn prospectively simply by changing the law. Judicial independence is important for these decisions, as is the freedom to make unpopular decisions in fact-bound and legal cases, but not quite as important as constitutional decisions, assuming a functioning legislature. Constitutional interpretations that establish norms are much harder to change, particularly if the same justices stay on the court for decades. If the Rhode Island Supreme Court embraced an active interpretation of the Rhode Island Constitution distinct from the U.S. Constitution, the question of term limits versus life tenure would become more important. Until then, term limits for justices promote other goals such as encouraging different judicial approaches and diverse court membership. These are admirable goals, but if they were the only things at stake in the dispute over Justice Ruth Bader Ginsburg’s successor, I doubt the renewed calls for term limits for U.S. Supreme Court justices would be quite as loud as they are now.
Will Rhode Island ever join the other 49 States and limit its Supreme Court justices to term limits? I doubt it, unless the Court takes a new direction on constitutional interpretation, even if one of those pesky state constitutional conventions happens sometime soon. Rhode Island has always been a little bit different.