Every few years the Supreme Court is pushed into the spotlight with an extremely controversial cases. Things like Brown v. Board of Education, Roe V. Wade, Bush V. Gore, Citizens United v. Federal Election Commission, and now Florida V. Health and Human Services become cemented into American legal history. With these historical cases comes the typical rally cry of term limits for judges. (Yes, the Supreme Court Justices serve life terms, if you didn’t know)
LIKE Blue State Failure on FACEBOOK
The term limit cry is pushed by radicals on both sides of the aisle when they see their prized legislation about to be overturned by the court. With the case concerning ObamaCare arriving at the Supreme Court there are renewed attempts to push the “term limits” argument.
The question of term limits for judges is asked by Duke Law professor Paul Carrington in The New York Times. He first argues that term limits should be implemented if the conservative wing of the Supreme Court overturns Obamacare. He argues that the supreme Court holds the power to invalidate laws and that “ultimate political power” ought to be constrained. He then goes on to argue that the Framers of the Constitution never considered issue of prolonged service of the Supreme Court justices and instead were only concerned if that the justices hold office for the period of “good behavior.” Carrington finishes up with describing how term limits would work, the benefits of term limits, and examines past interference with the court. (As if it makes it okay!)
I’ll take argument one point at a time.
“If five of our present justices broadly prohibit the federal government from providing accessible health care, Congress should consider using its constitutional power again to add two more justices – and impose a reasonable limit on the length of time that a mere mortal should hold so much political power.”
His argument is one of the reasons why the founders thought it best to give judges lifelong terms. They were afraid of political influences on the justices in light of certain judicial decisions. More importantly, the professor argues that the court should be constrained if the court decides a certain way on health care. What gives? Judges need term limits because they say the Constitution doesn’t give Congress the authority to force individuals to purchase health care, yet if they decide that ObamaCare is constitutional then the court is okay and isn’t in need of further restraint? Again, the founders were trying to confine this kind of political thinking by separating the court from politics as much as possible. The professor seems to think that our court system should be radically altered if his personal policy solutions are not enacted with the greatest of ease. It is interesting and funny how he is the one to complain about “mere mortals” having great political power.
Concerning the political power held by mere mortals the Professor makes this argument:
“The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land?”
In the Federalist Papers (more on those in a little bit) the founders point out that the judicial branch has the least amount of political power. The Congress and ultimately the people, have the authority to change the Constitution. Moreover, the Congress has the power of the purse and the Executive has the power of the sword. The Court has neither. Instead the Court is separated from political influence and therefore, has the power of credibility. However, it can’t enforce its judgments and must rely on the Executive branch to willingly support its decisions. In that light, its political power seems quite diminished. Furthermore, the Court can always be overruled. As several justices would point out, if you don’t like the decision we made, change the Constitution.
The professor argues that the founders never considered the outcome of lifelong terms:
“Long lives were uncommon in 1788, so the issue of prolonged service was not considered by the framers… Instead, they simply borrowed the term “good behavior” from a law enacted by the English Parliament in 1701 to deter a king dissatisfied with a judicial decision from firing the judge who made it.”
I don’t know how much a law student pays to attend Duke University, but I hope it isn’t much because the professor is utterly wrong on this issue. For an adequate response to his complaint about the founders not thinking this through, I turn to Alexander Hamilton and Federalist paper 78 entitled, “A view of the constitution of the judicial department in relation to the tenure of good behavior.” By the way, there are 6 separate papers written by the founders specifically concerning the judicial branch.
In the 78th paper, Hamilton argues the need for lifelong terms. He rightly points out the court does not have the power of the purse or the power of the sword. It is for that reason that Hamilton says:
“That as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in is constitution; and in a great measure as the citadel of the public justice and the public security.”
If Congress or the Executive branch was the judge of its own laws it would simply expand its own power. The need of a third branch, separated as much as possible from political influence, would be best suited for judging laws. As Hamilton points out, that doesn’t necessarily mean the third branch will always act proper or in the “best” manner. Yes, judges have and will interpret the constitution to fit their own political goals and preferences. However, forcing judges to run for re-election or nominating judges more frequently will not guarantee that judges interpret the constitution any “better”.
The professor does argue that nominating judges more frequently (every two years a new judge is added to the bench and the most senior is removed) will curve the long term ideological bent of the court. He claims his plan would “revise the job of a justice to a more human scale and perhaps make the court less likely to impose erratic political preferences on the citizens it governs. Because it would assure regular turnover, the court would experience fewer long-term ideological swings, enabling it to better do its original job of anchoring the legislative process to the Constitution.”
Although he is correct that his plan would curve the long-term ideology of the court he trades long-term ideology for short-term ideology. I am not sure if one is better than the other, but life-long terms do protect the court from short-term swings in political power and maintain the importance of the court. Under his plan, the majority of the court would be changed within ten years. That seems like a long time, but under the current system justices serve much longer and that is a benefit. John Paul Stevens retired in 2010 and had served for 35 years. That is 35 years of experience and knowledge. He is also a justice who was inaugurated at a different time when politics and government was different from it is today. Under this plan we would lose that experience and old-age traditions that are carried with the justices. It is a way for past generations to have an influence on current day politics which is a positive because it can act as a stabilizer in an ever-changing and chaotic political climate.
Under the current plan the courts importance is maintained. If the Professor had his way the nomination process would become another dull routine of Washington D.C. It would lose its grand-ness and importance as a means of having a profound effect on American politics and government. When a Supreme Court Justice slot is available the media and Washington D.C. stops. They honor the commitment of the former Justice, but also prepare for the fight to nominate the next. If it were to transform into a routine many in government would say, “Don’t bother wasting your time fighting on principle, will nominate a better justice in two years.” This, I believe, will have the effect of making short-term ideological swings greater and more dangerous. That is because fewer people will pay attention and the fight won’t mean as much. This will leave room for radicals on both side of the aisle to push their ideological favorites.
No, the court system isn’t perfect, but if this Duke Professor did his own homework he might have realized that the founders were not making perfect. They were taking a bad situation and trying to turn it into something more ideal given the circumstances. Our government, being created and operated by humans is by definition fallible. All we can do is create rules which will allow for the best outcome given our human nature. Term limits for the judicial branch, are not one of them.