Reforming the SCOTUS   2 comments

Mark Levin’s Liberty Amendments suggested a constitutional amendment to introduce term limits for US Supreme Court justices. Is that a good idea?

Northwestern University School of Law professor James Lingren debated Columbia Law School professor Thomas W. Merrill on this subject on March 11.

Lindgren advocated for a proposed constitutional amendment limiting justices to 18-year-terms with each term expiring in odd years, giving presidents two nominees for each 4-year executive term. He argued that term limits would help return the Supreme Court to its historic norm of shorter terms and bring it in line with other judicial entities in the United States.

“Except for the state of Rhode Island, no other western jurisdiction has life tenure for high court justices,” Lindgren said. “Term limits would help usher out judges with mental decrepitude and loss of stamina, eliminate strategic retirement for political reasons, reduce animosity in confirmation, and return to traditional levels of judicial independence.”

Merrill contended that term limits could erode public perceptions of the Supreme Court’s legitimacy by associating justices more closely with the outcome of contested elections for president.

“Term limits would recast the role of the court to reflect presidents’ political views, not the more subtle role prescribed in the Constitution.”

It’s important to note that the Constitution makes no mention of term of office for Supreme Court justices. Technically, an amendment is not needed to change the system which was instituted by John Marshall, the fourth Chief Justice. No, SCOTUS justices have no always been appointed for the remainder of their lives.

The basic purpose of lifetime appointment is to assure the integrity of the power granted to Court justices and protect them against unwarranted interference from either the legislative or executive branch. Lifetime appointment, it is said, maintains the neutrality and apolitical attitude of the Court. Because SCOTUS justices do not need to worry about reelection, they have no incentive to appease any particular group in order to win support. This lack of political bias improves the quality of the decisions rendered.

It’s been argued that a constant change of justices would render inconsistency in what is considered constitutional, that this would change with every new president who nominates his two to four justices according to his political beliefs.

Of course, we know that isn’t true. Presidents often attempt to buttress their agendas by selecting nominees favorable to their views. These justices then serve long after the president retires. Lifetime appointment secures a justice against “retribution” for decisions going against the current president or Congress, but it also allows justices to “rule” with abusive arrogance for decades, changing the political and social landscape through reinterpretation of the Constitution in ways that bear no resemblance to the actual text.

When I thought seriously about the proposed amendment offered by Professor Lindgren, it occurred to me that President Obama could have replaced one-third of the Supreme Court during his terms of office. My stomach started to hurt. It’s one thing to give that sort of power to Ronald Reagan who picked Antonin Scalia and Anthony Kennedy, two very different justices. It’s another to give that power to a political ideologue like Obama.

Levin suggests a super-majority legislative override of Court decisions. Oh, my! Political pressure in spades reminiscent of Roosevelt’s court-packing.

But … there’s no question something needs to be done. Since we’re proposing amendments, here’s my suggestion.

  • Supreme Court justices are to be appointed for 12-year-terms.
  • Terms of office expire every four years, so a president may nominate one new nominee in each of his executive terms.
  • A public record shall be published online of justice votes in cases heard by the Court, including how that vote correlates with the usual understanding of constitutionality.
  • Every year, justices must stand a confidence vote from state legislatures. Legislatures may determine their vote as befits their states. A justice receives a no-confidence vote if more than half of state legislatures pass a no-confidence vote.
  1. When a single justice receives a vote of no confidence, the president may nominate a replacement. That justice may serve only to the end of the term of office his/her predecessor held (so as not to give some presidents a nomination advantage over time)
  2. If more than one justice receives a no-confidence vote, the president may nominate the first replacement, while the Senate would nominate the second and subsequent replacements, and these nominations would require a super-majority approval in the House of Representatives.
  • Ordinary approval in the Senate would remain in force for ordinary nominees.
  • A president may nominate a justice for a second 12-year term, but no justice may serve more than 24 years.

Yes, it’s different from what we’re used to, but it would provide new blood to the Court on a regular basis and would prevent any one president from stacking the Court with his ideologues. It would also involve state legislatures, which would be free to involve the people in their decisions. The provision of publicizing Court decisions on the web with correlation to the usual understanding of the Constitution would allow people to educate themselves so they might guide their legislators in how to vote.

This provision, by the way, is similar to what Alaska does with its justices, who are appointed for life, but must stand a no-confidence vote on the general ballot every 10 years. We recently showed a bad justice the door, so it works … if we work it.

There is something more required for federal district judges. Similar term limits and no-confidence votes by the state legislatures in their districts would likely help a lot. Perhaps having the nominees approved by state legislatures in their district rather than the Senate would be a good idea.

Or we could just do away with the federal judiciary altogether, like my anarchist friends suggest, and let private market entities take their place. It’s important to recognize that the “anti-federalists” in the Constitutional Convention of 1789 considered the judiciary to be a real threat to liberty and the history of the SCOTUS doesn’t disabuse their sentiments. Just think about the Dred Scot ruling or Plessy v Ferguson or Roe v Wade.

There’s wrong and then there’s Supreme Court wrong and their wrong has, historically, been a deeper level of evil.

2 responses to “Reforming the SCOTUS

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  1. Pingback: Professor Richard Hasen and Dahlia Lithwick are right on state judicial election ads but a similar and more serious problem lurks for the Supreme Court (and possibly the rest of the federal judiciary) « Hercules and the umpire.

  2. Reblogged this on aurorawatcherak and commented:

    Since the death of Antonin Scalia (who I suspect was murdered), this post becomes more important.


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