Monday, October 13, 2008

Fantasizing About the Future of the Supreme Court

I had planned to write on a totally different topic today, but then I checked my mailbox.  The latest edition of the ABA Journal arrived, and its cover story focuses on "Remaking the Supreme Court."   In a very thoughtful piece entitled "Supreme Court 2.0," writer Richard Brust describes a Court that is facing considerable challenges, including the fact that the justices are living longer, there is less turnover on the Court, and the Court is becoming increasingly politicized.   As a way to address some or all of these problems, Brust suggests the following:

1.   Limit Judicial Terms - As life spans have increased, so has the length of the average Justice's term of service.  One proposal is to end life tenure and hire judges for fixed 18-year terms.

2.  Make them Retire.  Aging justices should be given "golden parachutes" that encourage them to retire prior to losing a step.

3.  Make them Ride - Reintroduce the old concept of riding circuit. 

4.  Make More of Them - Revive Roosevelt's plan to pack the Court.  Add at least another ten judges to increase diversity of opinion.

5. Diversify Them - End the focus on selecting federal appellate judges and look to those who have served in other capacities, such as business and politics.

6.  Rotate the Chief - Allow the justices, rather than the president, to decide who the Chief Justice will be.

7.  Let them Mug - Allow television cameras into the Supreme Court.

The beautiful thing about this article is that so many of its suggestions are not only plausible, but legal.   So much of what we know about the Court as it stands exists not in Article III, but in our collective memory and tradition.  So, changes could realistically be made with very little Constitutional difficulty.   My major quibble with the article is that while it deftly explains the rationale behind the suggested changes, it does not go far enough to critique the proposals.  Even if we could change some of the things about the Court, should we change any of them at all? Here are some thoughts.

Of all of the ideas, limiting the terms of the justices seems to me to be the most problematic.  The best argument for set term limits is that the justices' incentives for timing their retirement to coincide with a president to their liking would be diminished.   I believe three rebuttals can be offered.   First, we should begin with the understaning that our justices are political creatures.  Of course, they might not be so impetuous as to make decisions based on what they ate for breakfast, but by participating in the nomination process, our judges are either witting or unwitting participants in the political process.  I, for one, do not believe this is necessarily a bad thing.  Yes, a justice might have a particular view of the Constitution and its interpretation, and a president might be more willing to appoint persons with a particular viewpoint.  But, assuming that the American people are aware of this reality when they vote for the president, all of this is seemingly quite fair. 

Second, I like the idea that presidents that are long gone can leave a legacy on the court for years to come.  It's almost like allowing "dead hand" control of the judiciary - Gerald Ford is no longer with us, but Justice Stevens is.  This is the way it should be.  No one faction or judicial viewpoint will ever have control over the Court under its current system unless one political party with the same idea set is in power long enough.  Even the twelve combined years of Reagan and Bush (41) could not acomplish the goal of an ideologically unified Court.  That is a very good thing. 

Third, the article's suggestion ignores the beauty of life tenure - you can do whatever you want.  My fear is that if justices were subjected to term limits, we would be less likely to see someone like Chief Justice Earl Warren.  Eisenhower appointed Warren to the Court based on his strong conservative credentials, and as we all know, Warren has now become the poster-child of liberal judicial activism.  Eisenhower later called the appointment, "the biggest damned fool mistake I ever made."  I'd like to see more of those kinds of "mistakes,"  and I think that any system of limiting life tenure would represent a step toward preventing that.  Any encroachment on the security of the judiciary could lead to a slippery slope where the judges feel that they must comply with every political whim of the current president or face his/her wrath.

Finally, the proposal on limiting terms as a way to limit the politicization of the Court ignores something that I believe, perhaps naively, to be true.  While any given justice might be supported by a political party or hold staunch views, at any given moment, they will take a position that surprises you.  Prior to 2000, who would have thought that Justice Rehnquist would have authored a 7-2 opinion in favor of Miranda rights?   Not many people did (I know I didn't!), but it happened in Dickerson.  So, although judges are political, at the end of the day, they are accountable to the law, and it is that allegiance that will (hopefully) carry the day more than that to any political party or ideology or philosophy.


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