Changing my Mind

The American Constitution Society and the Federalist Society often co-sponsor debates in various public forums on controversial constitutional issues. For those unfamiliar, the Federalist Society is an organization of lawyers that was formed during the 1980s to counter the left-wing bias in law schools in the courts. Its members are mostly conservative or libertarian. The American Constitution Society, on the other hand, and is often described as its progressive counterpart with a more or less leftward political orientation. Both groups are committed to civil debate of United States Constitutional issues, often those that cut across ideological lines.

These organizations recently sponsored a debate here in Dallas on the issue of whether there ought to be term limits imposed on United States Supreme Court justices.

The debate was not the kind of presentation we are used to seeing for presidential or other political campaigns where the candidates pontificate and tout their virtues and allege their opponents’ flaws and vices. It was presented in the traditional manner where a proponent of the proposition stated his case, an opponent stated his, and each side was permitted a shorter rebuttal. There was absolutely no talking over or interruptions. In short, unlike campaign debates, more light than heat was actually produced.

I have been a fan of term limits for public officials, including judges, for some time. My main reason is that unlimited incumbency tends to increase the power of legislators and executive officers in favor of special interests and at the expense of individuals. The longer one is in office, the more power, especially the informal kind that is what really matters, increases with knowledge the proclivities of fellow officials, not to mention the “skeletons in the closet” many politicians seem to have. Political office is almost unavoidably lucrative for the officeholder, and the position becomes an end in itself. Special interests, almost by definition, have continuous attention of lawmakers and enforcers. Regulatory capture, which means regulation that ends up favoring the industry or activity regulated, is a phenomenon known to anyone who has a cursory knowledge of economics. The necessity of standing for reelection periodically generally has no practical check on incumbency. Inertial forces resist change. Challengers are nearly always less well-known, and are at serious disadvantage unless the incumbent is guilty of some egregious offense or scandal.

The United States Constitution provides that judges of the Supreme Court and inferior courts serve “during good behavior” and their compensation may not be diminished during their term of office. In other words, their appointment is for life. The purpose of this tenure was to insulate the judiciary from politics as near as possible, and assure the integrity of judicial rulings.

A federal judge can be removed from office the same way as the President — vote of impeachment by the House of Representatives, and conviction and removal by two thirds vote of the Senate. Only one Supreme Court justice has ever been impeached, but conviction removal failed in the Senate. Slightly more than a dozen lower court judges have similarly been impeached — nearly all for criminal offenses and bribery — but less than 10 have been removed. (A number have resigned when facing probable impeachment.)

Supreme Court justices, once confirmed, are free to decide cases based on their view of the law and Constitution, and are supposedly immune from the political vagaries of the day. Presidents’ nomination of justices, and Senate approval, which has in a number of instances been spectacularly withheld, has been based primarily upon party politics and ideology. There is also recently been a consideration of the relative youth of the prospective justice, so the nominating President can extend his influence to well beyond his two-term limit in office. These reasons have led me to generally favor some sort of term limits for Supreme Court justices, and lower court federal judges.

After listening to a well-presented debate on the issue of whether Supreme Court term limits was a good idea by four Constitutional scholars, I have pretty much changed my mind.

The reason for the change is after the discussion I realized that, first, the proposed cure might be worse than this disease. This is primarily because if you had fixed terms of years, which would have to be staggered, every presidential election would be about the Supreme Court. Nearly every other issue would be subordinate.

Second, the debate illuminated that the real problem with the Supreme Court is not the unlimited terms. It is that the Court has, practically speaking, the absolute final say on issues upon which significant portions of the electorate strongly disagree. While the Court decides discrete cases and controversies that are based on facts certain, the rationales and the legal principles pronounced have far-reaching consequences. The abortion issue, has raged for 44 years, and poisoned politics ever since it was decided in 1973.

In my view, the problem with Roe v. Wade is that it decided an issue of public policy for the entire nation on which about which nearly one-half of the populace disagrees. It did the same on the issue of gay marriage, in an area that has always been the province of the states. Both cases summarily overturned state laws, which were legally enacted by the people of those states. These cases affronted the principles of federalism that underpin the Constitutional framework that has worked so well to mitigate differences in public policy across a diverse nation. The divisions in this country that the media continue to showcase and harp on, are a result of the pro-centralization and anti-federalist rulings of the court, as well as many statutes enacted by Congress and regulations promulgated by the executive branch. Statutes, however, can only be enacted by a majority, or in some cases, a supermajority of representative chosen by the voters. Supreme Court decisions only require the vote of five out of nine unelected judges.

The people of states who believe they are adversely affected by a Supreme Court ruling, should have a Constitutional means to challenge that ruling. Term limits the life tenure of Supreme Court justices will not solve this problem.

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