Carol Platt Liebau: Supreme concerns

Tuesday, July 31, 2007

Supreme concerns

This is guest blogger Wile E Coyote.

Chief Justice Robert appears to have recovered from a seizure that put him briefly in the hospital. Thank goodness.

In a Supreme Court as divided as the present one, the health of Justices is front-page news. The viciousness of fights over Court appointments arises in part from Congress and the President having injected federal law into every nook and cranny of life, thereby placing everything we do within the court's scrutiny. Additional fault lies with the courts, which over the last 50 years have taken an increasingly aggressive posture vis-a-vis the states and the other federal branches. Some might say this trend slackened with the Rhenquist and Roberts Courts, while others will argue that this aggression simply took a different turn.

Whether you like the trend or not, another fact is that greater life expectancies have substantially increased the tenure of the Justices. Old age brings inevitable mental decline, and can also bring emotional instability. Long service on the bench also triggers a condition known to the bar as robe-itis, where a judge has lost perspective on his relative importance in the world. Too often justices believe themselves to be the special guardians of particular segments of the population. This is bad for the law and for our republic.

I don't think the founding fathers, when they provided for unlimited judicial terms, anticipated people regularly serving on the bench for decades, and they certainly could not have expected widespread service by people in their 70s and 80s. As much as I admire the work of Justice Thomas, for example, I don't think it's good for the country to have him on the court for 40 years.

The time has come for service limits for Supreme Court Justices, somewhere in the 12-18 year range. If the reach of federal law and the aggressiveness of modern judging make nominating and confirming a Supreme Court Justice inevitably contentious, we can reduce the harm to the law and the country by lowering the stakes. Term limits will do this by increasing the frequency and regularity of appointments. Limits will also force the Justices to think more seriously about continuity in their jurisprudence, since they won't be able to cement a legacy simply through long service.

4 Comments:

Blogger Chepe Noyon said...

I agree that medical science has changed things in ways that the Founders did not anticipate. We'll need a Constitutional amendment to address this issue -- always a difficult problem. I'm not sure whether we should amend the Constitution to provide for term limits (how many years the Justice serves) or age limits (at what age the Justice must retire). I suspect that we'll want the former, because the latter would induce Presidents to factor youth into their nominating process, and youth is inversely correlated with experience.

And, although I disagree with many of Mr. Roberts' decisions, I am pleased that he will recover quickly. I wish injury upon no man.

10:46 AM  
Blogger Greg said...

Very nice post, Chepe Noyon.

5:43 AM  
Blogger LarryD said...

Constitutional Amendments I want discussed:

Term Limits, for The Supreme Court, for Congress, and for the bureaucracy.

Repeal of the 17th Amendment. That would make the Senate represent the States again, restoring a balance we lost when the 17th Amendment was passed.

Restoring Impoundment, which would (depending on the President) restore a check on Congress's pork barrel spending habits.

12:17 PM  
Blogger One Salient Oversight said...

Another good idea Wile. Keep these up and you'll make me a conservative yet!

I think a term limit should be a good thing but should apply for all Federal judges, even those not on the Supreme Court.

And as for the Supreme Court - why not select 9 federal judges randomly every year to serve on SCOTUS?

10:49 PM  

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