Bad news for the Justices (and the rest of us)

As I have written before, I don’t like the idea of “term limiting” the Justices. I have even provided a “top ten” list of the ways to address the polarization problem without term limits. Now, with a tip of the hat to Howard Bashman, I see that Norm Ornstein, writing in the Atlantic, has concluded that: “The best solution to the increasingly politicized and unseasoned Court is to limit justices to 18-year terms.” Mr. Ornstein’s opinions matter in Washington.

While it is cheeky almost beyond imagining, I remind the Chief Justice that he once told Jeffrey Rosen, writing in the Atlantic, about the importance of the Court speaking with one voice. Rosen provided this cutline in January of 2007: “In an exclusive interview, Chief Justice John Roberts says that if the Supreme Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas.

He added that:

In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

Roberts suggested that the temperament of a chief justice can be as important as judicial philosophy in determining his success or failure.  . . . .

I will be dead and buried before term limits, once imposed upon the Justices, “trickle down” to lowly Article III district judges, but it becomes inevitable once imposed at the top. Kopf’s cry to the Gods (and the Chief): Don’t make me roll over in my grave.

RGK

17 responses

  1. Judge:
    Term limits for federal judges is a terrible idea. The good news is that it is very likely never to happen so don’t fret. Mr. Orenstein’s article focuses on partisanship but omits the single most important thing that lifetime tenure confers: judicial independence. Without it we are all just mere functionaries of the state. Nothing more.
    Robert

  2. Sir:

    I agree with Robert here, although perhaps my voice, as a layman, is not so important. But I remind both of you that the reason this is bubbling up in some quarters is because the judiciary (especially the federal judiciary, and especially the Supreme Court) is coming to be seen as political. That’s not exactly their fault either. We have gotten to the point where every minor detail ends up in court, instead of the normal course of commerce.

    I think the noise will increase to a clamor if we don’t figure out a way to reduce federal intervention in everyday life. Obviously, I, while seeing the problem approach, I have little idea on solutions, if there are any.

    Neo

  3. Robert,

    I hope you are right. But when things hit a critical mass they explode. I am fearful that we are reaching that point. This was once a wacky idea advocated by some academics. No longer.

    All the best.

    RGK

  4. I could imagine a more democratic system where federal judges serve for single terms (maybe two decades) rather than life. Thomas Jefferson almost certainly would have preferred that, given his concerns about the judiciary. But that’s not the system we have.

    A better (and currently constitutional) system would require SCOTUS judges to spend the summers riding the circuits and sitting in the trenches. To keep them in tune with pragmatic concerns. And to add some real incentive to retiring earlier.

  5. You reap what you sow-
    Bush v Gore changed how many Americans viewed the Court:
    -Jeffrey Toobin in the New Yorker 12/6/10:
    “What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles.” ……

    “But the least we can expect from these men and women is that at politically charged moments—indeed, especially at those times—they apply the same principles that guide them in everyday cases. This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor. ”

    If judges become politicians, why should term limits not apply?

  6. ” On the eve of the election Sandra Day O’Connor had made a public statement that a Gore victory would be a personal disaster for her. Clarence Thomas’s wife was so intimately involved in the Bush campaign that she was helping to draw up a list of Bush appointees more or less at the same time as her husband was adjudicating on whether the same man would become the next President. Finally, Antonin Scalia’s son was working for the firm appointed by Bush to argue his case before the Supreme Court, the head of which was subsequently appointed as Solictor-General.”

  7. One of the great problems with the country and, especially the judicial system, stems from lifetime appointments and seniority. Term limits for Judges? I’d vote for them in a snap second. Give people the opportunity to serve. Listen for those with different views and listen to those with different views and change your mind.

  8. Lorin,

    I agree that judges must listen and change their minds. The irony, of course, is that life tenure was intended to secure those very qualities.

    All the best.

    RGK

  9. We just need more Nebraskans on the Circuit (Judges Ross, Lay,and now Riley-who decide cases based on evidence- not views,) here is a good description of the Nebraska Supreme Court as it will soon deal with a case that be the focus of the national media:

    ““As far as being ideologically bent, we don’t see any of those lines on the Supreme Court,” said Anthony Schutz, an associate professor at the University of Nebraska College of Law. “Their ideology doesn’t seep through. Dissents are very rare.”

    James Hewitt, a historian, past president of the Nebraska State Bar Association and author of “Slipping Backward: A History of the Nebraska Supreme Court,” said none of the justices is “dogmatically conservative.” He said that unlike the U.S. Supreme Court, where justices often vote along ideological lines and issue-scathing dissents, Nebraska’s high court is a bit more mellow.

    Still, Hewitt said: “the court is a conservative group. Nebraska is a conservative state and the court reflects that.” He added, “Conservative does not mean they are Republicans, or tea party-ites but, rather, that they are not judicial activists, and rely on precedent whenever possible” — and if precedent is not available, “they would be inclined to give great weight to the opinion of the legislative branch.”

    from Politico

  10. There was a time when judges were viewed as being above the fray. You could disagree, knowing that the disagreement was in good faith. This was always a fiction of course, a polite suspension of disbelief- judges have preferences, prejudices and desires like everyone else- but it was a largely plausible fiction save for moments like the Plessy decision.

    However the Reagan revolution was an explicitly ideological one, that ideology being a weird love child of Ayn Rand, Father Coughlin and Bull Connor in an unholy threesome (I’ll lay off the visual now). It was and is a toxic brew that delegitimizes all it touches, including the court system. It has made the judiciary a sport- both sides want to appoint as many people as possible in their own ideological mold (this started with Nixon, but ramped up with Reagan.)

    This sport was taking place in the internet age where such double dealings as O’Connor fretting about who would appoint her successor while deciding that very question were suddenly exposed to the light of Google. Decisions like Citizens United and the pending contraception case (which will, I am near-certain, result in conferring religious status on corporations) are now watched and read by millions who see it as more self-dealing [If the company seeking religious freedom was Muslim not Mennonite, the optics would be very different]. Term limits, which will probably happen in twenty years or sooner, are being proposed as an act of self-defense against a group of three card monte dealers in robes.

  11. Z,

    You write, beautifully, the following:

    There was a time when judges were viewed as being above the fray. You could disagree, knowing that the disagreement was in good faith. This was always a fiction of course, a polite suspension of disbelief- judges have preferences, prejudices and desires like everyone else- but it was a largely plausible fiction save for moments like the Plessy decision.

    However the Reagan revolution was an explicitly ideological one, that ideology being a weird love child of Ayn Rand, Father Coughlin and Bull Connor in an unholy threesome (I’ll lay off the visual now). It was and is a toxic brew that delegitimizes all it touches, including the court system. It has made the judiciary a sport- both sides want to appoint as many people as possible in their own ideological mold (this started with Nixon, but ramped up with Reagan.)

    I agree almost entirely with you. Reagan’s explicit desire for ideological judges really started the fire that is about to consume the federal judiciary. By the way, and as a very low level Republican functionary, I supported Bush 41 in his 1980 primary campaign against Reagan. The word “voodoo” still rings true to me.

    All the best.

    RGK

  12. Thank you (and apparently I have an account for this thing).

    Society as a whole runs on contracts:

    You pay me a decent wageI’ll do good work.

    I can save money and plan for the future and lead a healthy life while feeling like a valued member of societyyou won’t have to sit in stark terror in your mansion watching riot footage.

    Judges make defensible decisions from a neutral standpoint, not influenced by their legacy or fundraising concerns Judges get life tenure and social respect

    Break that and it all falls apart.

  13. I agree with some of the points made previously but a major point has been overlooked and that point is how elitist the court has come. This elitism has two dimensions. First, regardless of their ideological positions the fact remains that all of the current justices represent just two Ivy League universities. Since when did the admissions committees at those universities become the arbitrators of how the average American lives their lives? The most obvious example of the incestuous relationship is the fact that Obama appointed his law school teacher to the Court. The fact that this was done without even a hint of blushing is indicative of just how out of touch our intellectual elites are. Does anyone honestly believe that there are no people from any other universities qualified to serve on SCOTUS?

    Second, RGK has noted the irony that judicial independence was supposed to free judges from ideology and not chain them to partisanship but there is a further irony that the increased professionalism and expansion of the legal profession that took place in the 1970s has lead to one of the least professionally diverse courts in our history When was the last time Congress approved a nominee to SCOTUS that had never been a judge? There was once upon a time a tradition stemming from John Marshall to Earl Warren of appointing elected office holders to the Court .Say whatever one wants about their opinions but given that both had held elected office it helped to give the court at least a cover of democratic legitimacy. Was the court acting politically? Of course, there were politicians on the court.

    That is the core of the anger. We have the most narrow court in American history in terms of life experience writing broad rules for society. The law has became far more pervasive and invasive in the life of everyday Americans at the same time its practitioners have become more and more refined and out of touch. I cannot see the elites backing down, especially not since their allies have opened the money floodgates, and yet without democratic legitimacy the public’s anger will only grow. I am sorry Richard but you should take motion sickness pills before you die.

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