Fixing The Real Problem

There’s a proposal afoot to set up term limits for Supreme Court justices.

READ ALL ABOUT IT.

The idea is that Congress should re-define by statute (not by Constitutional amendment) how the office of Supreme Court justice works so that, even though they would retain lifetime appointments to the judiciary, they wouldn’t be serving on the Supreme Court that whole time. They’d be rotated off the Court to other positions as federal judges.

Thus every president would get to appoint a new justice every two years and since everybody would know that he’s be term limited on the Court, it would help to de-politicize Supreme Court appointments and we’d all be better off. Right?

I’m am cool to this idea.

First, there’s a question in my mind about whether the scheme would itself be constitutional. The Constitution says:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office [Article III, Section 1].

The way I read that, it says "The Judges . . . of the supreme . . . Court[], shall hold their Offices during good Behavior." If I’ve been appointed to an office on the Supreme Court (hypothetically speaking), then it seems ot me that I retain that office (i.e., the one on the Supreme Court) as long as I’m on good behavior, which means "for life" as long as I don’t get impeached. You can’t rotate me off to some other judgeship, at least that’s how I’d read it if I were a power-hungry Robed Master out to impose my will on the populace.

So I don’t know that the Court would buy the redefinition-of-office-by-statute rigamarole, in which case a constitutional amendment would be required.

That ain’t gonna happen.

We’ve got three branches of government and conservatives control two of them by fairly consistent, if still thin, majorities. Since the reign of History’s Greatest Monster, American political culture has taken a trend to the right, and that is putting the squeeze on 1960s style liberalism. If the trend continues, as liberals fear and conservatives hope, the courts will be the last bastion of liberalism, the last vehicle for imposing liberal policies on the U.S. people. That means that liberals will need the courts more and more and–as long as the liberal judicial culture is maintained–there will be no consensus forming on the liberal side for a Constitutional amendment to weaken the power of judges by term limiting them.

Now, a generation from now, after conservatives have been able to put their guys on the courts and the liberal-appointed guys have died off, such a consensus might develop, but I don’t see it happening until then.

Further, I don’t think that this gets at the real heart of the problem. The Court was able to conduct itself with substantial (if not perfect) judicial restraint for a century. It was only in the second American century that things went to hell. Court appointments weren’t heavily politicized until recently because the Court was staying out of politics (for the most part).

But when Earl Warren (History’s Greatest Judicial Monster) was appointed to the Court, things changed in a big way. The Court started to subvert the democratic process to an unprecedented degree. As long as liberals were in control of the legislature and (sometimes) the presidency, nominations to the Court didn’t become hyper-political events. But when the liberals started losing control of the legislature and the presidency, things got much more political very quickly as the last remaining liberal arm of government was in jeopardy.

That’s the real reason the fights have gotten political: The Court has been injecting itself too much into the business of politics. By politicizing its actions, the Court has politicized the nomination process.

It thus seems to me that merely term-limiting Justices won’t fix the problem. Term limits for legislators (those that have them) doesn’t stop their elections from being politicized, because once elected they do politics. Term-limited Justices would continue to have politicized confirmations as long as they’re goin to do politics once they get on the Court.

The real solution, therefore, would be to de-politicize the Court by de-politicizing its behavior.

How do you do that?

By nominating and confirming Justices (and other judges) who are originalists, who are willing to go with what the law says even if they don’t like it.

That’s not going to happen if liberals have their way, which means that fights will continue to be political until the conservative trend in American politics has gone on long enough that there are enough conservative legislators to confirm enough originalists to the courts that their behavior becomes de-politicized again.

I don’t think there’s a quick fix on this one.

What is called for is a principled commitment to originalism and a growth of the conservative base. If the Republicans aren’t up for that, I’m sure a new party can be founded that is.