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An Idea Whose Time Has Come
Supreme Court Associate Justice David Souter (a bane of private property rights, among others) announced his forthcoming retirement last week, the speculation quickly reached full swing: whom would President Obama appoint as Souter's replacement?
This is no idle chatter; rather, this could be one of Obama's decisions with the most profound legacy, as Supreme Court justices have an unlimited term, checked only by death, voluntary retirement, or impeachment by Congress. The current senior justice, John Paul Stevens, was nominated to the court in 1975 ... by President Ford. Antonin Scalia and Anthony Kennedy, both nominated by President Reagan, have served in excess of two decades. Economic "stimulus" bills, tax plans, and wars come and go; the Supreme Court, however, rarely changes membership.
The Court wields incredible power. As interpreters of the law and arbiters of the Constitution, the SCOTUS justices have the ability to impact nearly every aspect of our lives and nearly every freedom and liberty we enjoy. It was the Supreme Court that established slaves as property, enshrined "separate but equal" education, and gave a stamp of approval to an unprecedented expansion of government intrusion via FDR's New Deal. For good or ill, the Court has been responsible for ending and then reinstating the death penalty, removing general group prayer in schools, disallowing and re-allowing public display of the Ten Commandments, establishing new federal primacy at the expense of state's rights, sanctioning the confiscation of private property, affirming the Second Amendment right to bear arms as an individual liberty, and allowing government regulation of political speech. The Court has impacted the treatment of terrorist prisoners and medical marijuana.
Each of these cases could be a book in and of itself in terms of legal scholarship and the relative merits or demerits of the decision. One thing, however, is not open to debate: the Court has immense power, and the individual judges are often not only far-reaching in the impact of their opinions, but literally far-reaching in the time of their tenure. In the famous words of Lord Acton, "power corrupts". The longer one is in authority, the more power he can achieve; the longer one is in power, the less perspective he gains on the workings of the real world.
In recognition of the tyrannical aspect of an unlimited term, the US Constitution was amended to limit the President to a maximum of two four-year terms. Congress, however, has neglected to limit its own terms of office, unsurprisingly unwilling to re-balance the scales of power; thus, there are senators who have served over half their respective lives. and one that has literally been in office since the Eisenhower presidency. Term limits for Congress was a heavily debated topic in the mid-to-late 1990s with several states enacting their own term limits — limits that were struck down as un-Constitutional by... the Supreme Court. A Constitutional amendment was voted on in the House and Senate, with unsurprising results: rarely do politicians voluntarily limit their own power, and instead they tend to bloviate about their own indisposability.
But term limits for the federal judicial branch, specifically the Supreme Court, is a topic rarely covered. I recognize that the judicial branch is unique, and terms should be long enough to establish some sort of consistency. So while 8 years (2 terms) is sufficient for the presidency, I believe 10 years for members of the House of Representatives (5 terms) and 12 years for Senators (2 terms) are fair limits for Congress. Along those same lines, I believe terms of 16 years would be sufficient for Supreme Court Associate Justices. This would give justices a chance to learn the ropes, observe other justices, and then most likely be around long enough for a case to come back around to the Court for clarification. But looking at American political movements, things tend to go in 20-year increments, so we would have an acceptable turnover rate for justices, ensuring no dinosaurs on the bench, at least relatively speaking. It would also increase the chances that a judge would have to actually live in the private sector under the opinions issued by the Court. It would also make an out-of-step justice from clinging to the bench long past his productivity.
Setting the term at 16 years would provide another benefit. Currently, because there is no set time period and justices can retire whenever they please, there is no consistency to how many appointments to the Court a President might fill. Some fill none, such as Carter (about which one can be thankful); others, such as Reagan, fill 3. Setting up a staggered system would even out the influence and legacy of the presidents, with occasional health-related vacancies. Each spot, however, could be like a senate seat — scheduled to expire in a certain time period, perhaps even with the rule that if a justice were appointed to less than half a term, he could be eligible for re-appointment, making the total potential term 24 years. As an alternate choice, the term could be set at 12 years, with more turnover in justices.
There would be a side benefit to a term-limited appointment. Currently, as ideological lines on the Court become more polarized and the confirmation process becomes more contentious, there is increasing emphasis on choosing young, less experienced jurists for the post, the idea being to extend one's influence for as long as possible. Thus, many experienced, qualified, brilliant candidates are not even considered because they aren't thought to have a long-lasting enough term of service: in short, they are too old. Term limits would take age and longevity out of the equation at least somewhat, increasing the pool from which to choose.
Term limits are nearly always a controversial issue, as nearly everyone can point to a specific Senator, Governor, Congressman, President, or Justice that he wants to stick around. But there is no indispensable man or woman. The infusion of new ideas and the accumulation of power demand that we establish limits on our politicians. A good place to start would be our nation's High Court. Term limits for judges is an idea whose time has come.
This is no idle chatter; rather, this could be one of Obama's decisions with the most profound legacy, as Supreme Court justices have an unlimited term, checked only by death, voluntary retirement, or impeachment by Congress. The current senior justice, John Paul Stevens, was nominated to the court in 1975 ... by President Ford. Antonin Scalia and Anthony Kennedy, both nominated by President Reagan, have served in excess of two decades. Economic "stimulus" bills, tax plans, and wars come and go; the Supreme Court, however, rarely changes membership.
The Court wields incredible power. As interpreters of the law and arbiters of the Constitution, the SCOTUS justices have the ability to impact nearly every aspect of our lives and nearly every freedom and liberty we enjoy. It was the Supreme Court that established slaves as property, enshrined "separate but equal" education, and gave a stamp of approval to an unprecedented expansion of government intrusion via FDR's New Deal. For good or ill, the Court has been responsible for ending and then reinstating the death penalty, removing general group prayer in schools, disallowing and re-allowing public display of the Ten Commandments, establishing new federal primacy at the expense of state's rights, sanctioning the confiscation of private property, affirming the Second Amendment right to bear arms as an individual liberty, and allowing government regulation of political speech. The Court has impacted the treatment of terrorist prisoners and medical marijuana.
Each of these cases could be a book in and of itself in terms of legal scholarship and the relative merits or demerits of the decision. One thing, however, is not open to debate: the Court has immense power, and the individual judges are often not only far-reaching in the impact of their opinions, but literally far-reaching in the time of their tenure. In the famous words of Lord Acton, "power corrupts". The longer one is in authority, the more power he can achieve; the longer one is in power, the less perspective he gains on the workings of the real world.
In recognition of the tyrannical aspect of an unlimited term, the US Constitution was amended to limit the President to a maximum of two four-year terms. Congress, however, has neglected to limit its own terms of office, unsurprisingly unwilling to re-balance the scales of power; thus, there are senators who have served over half their respective lives. and one that has literally been in office since the Eisenhower presidency. Term limits for Congress was a heavily debated topic in the mid-to-late 1990s with several states enacting their own term limits — limits that were struck down as un-Constitutional by... the Supreme Court. A Constitutional amendment was voted on in the House and Senate, with unsurprising results: rarely do politicians voluntarily limit their own power, and instead they tend to bloviate about their own indisposability.
But term limits for the federal judicial branch, specifically the Supreme Court, is a topic rarely covered. I recognize that the judicial branch is unique, and terms should be long enough to establish some sort of consistency. So while 8 years (2 terms) is sufficient for the presidency, I believe 10 years for members of the House of Representatives (5 terms) and 12 years for Senators (2 terms) are fair limits for Congress. Along those same lines, I believe terms of 16 years would be sufficient for Supreme Court Associate Justices. This would give justices a chance to learn the ropes, observe other justices, and then most likely be around long enough for a case to come back around to the Court for clarification. But looking at American political movements, things tend to go in 20-year increments, so we would have an acceptable turnover rate for justices, ensuring no dinosaurs on the bench, at least relatively speaking. It would also increase the chances that a judge would have to actually live in the private sector under the opinions issued by the Court. It would also make an out-of-step justice from clinging to the bench long past his productivity.
Setting the term at 16 years would provide another benefit. Currently, because there is no set time period and justices can retire whenever they please, there is no consistency to how many appointments to the Court a President might fill. Some fill none, such as Carter (about which one can be thankful); others, such as Reagan, fill 3. Setting up a staggered system would even out the influence and legacy of the presidents, with occasional health-related vacancies. Each spot, however, could be like a senate seat — scheduled to expire in a certain time period, perhaps even with the rule that if a justice were appointed to less than half a term, he could be eligible for re-appointment, making the total potential term 24 years. As an alternate choice, the term could be set at 12 years, with more turnover in justices.
There would be a side benefit to a term-limited appointment. Currently, as ideological lines on the Court become more polarized and the confirmation process becomes more contentious, there is increasing emphasis on choosing young, less experienced jurists for the post, the idea being to extend one's influence for as long as possible. Thus, many experienced, qualified, brilliant candidates are not even considered because they aren't thought to have a long-lasting enough term of service: in short, they are too old. Term limits would take age and longevity out of the equation at least somewhat, increasing the pool from which to choose.
Term limits are nearly always a controversial issue, as nearly everyone can point to a specific Senator, Governor, Congressman, President, or Justice that he wants to stick around. But there is no indispensable man or woman. The infusion of new ideas and the accumulation of power demand that we establish limits on our politicians. A good place to start would be our nation's High Court. Term limits for judges is an idea whose time has come.
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