The lovely Mr Fallows does sterling work expressing his indignation at Bush v Gore in the Supreme Court post that mistermix linked to:
For all of their esteem as the “swing” members of the court, the reputations of both former Justice Sandra O’Connor and current swingman Anthony Kennedy should forever be diminished by their having made up the majority. As John Paul Stevens said at the end of his memorable dissent:
…[T]he majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
Fallows’ suggestion of term limits or a compulsory retirement age seems perfectly reasonable to me. I know full well that at my age I shouldn’t be permitted to operate heavy machinery, use sharp knives or radically alter the political, social and economic landscape by means of arbitrary and partisan judgments handed down with no respect for either established precedent or good manners.
And yet Clarence Thomas, if he so wishes, will be on the Supreme Court till the day he dies, no matter how decrepit or deaf or bug crazy he becomes, sitting on his fat arse day in and day out on the public dollar, catching the odd three hour cat nap between intermittent bouts of comparing toy soldiers with Sammy Alito, giving Roberts wedgies, giggling behind the bench because Scalia wrote “boobs” on every page of his case brief, and conspiring to destroy the fabric of society.
I don’t dispute that extreme age sometimes brings great wisdom, or that compulsory retirement would have robbed us of the later careers of many fine jurists – Brennan and Marshall and Stevens spring to mind. Nonetheless, and in the absence of any statistical evidence to support them (because it’s time for a drink and I can’t be bothered finding it), I think the arguments for the change are good ones.
If the only effect of mandatory retirement was ridding America of the ridiculous spectacle of judges defying age and illness and boredom merely to keep a seat warm until there is a new President, then it would be worth it. We would still, happily, be able to gossip about which judge looks ill, which is always such a satisfying discussion to have over several bottles of scotch after an exhausting day trying to peg Skittles at Kennedy from the public gallery and not get caught.
The Supreme Court needs new blood, new ideas and, frankly, the odd judge who was born after the Eisenhower administration. Courts should (as much as possible) reflect the aspirations and the diversity of the society they serve, which is a little hard when three quarters of the bench doesn’t know or care what IUDs or DVDs or CFCs are.
I suspect that mandatory retirement would assist in this regard, not least because every year more and more women (pdf) (and with any luck more non-white, non-straight, non-bigoted persons) are managing to lie, cheat and backstab their way into the corner offices and onto the bench (they are lawyers, after all). There’s a good chance that some of those new judges might come with a uterus and a conscience attached.
Of course, changing the rules for the Supreme Court would require a constitutional amendment which, even if it got up, would probably be held to be unconstitutional by a 9-0 decision of the Supreme Court applying the doctrine of Faciens quod volo, canes feminam. Still, a girl can dream.
Fallows also has up a number of fine posts on the filibuster, including this good summary of its history, which he ends with this:
For now this last thought, from a reader with family ties to George Norris, the long-time “progressive Republican” U.S. Senator from Nebraska:
[My ancestor] Senator Norris filibustered the old fashioned way, as it were. (His stand that no politician should invest in any asset except US bonds to avoid any bias also contrasts sharply with politicians today.) I did want to point out that, if the Democrats lose the Senate, then I predict that the Republicans will simply change the rules*, thus eliminating the problem. At that point they will cheerfully switch sides, and then ram it down the throat of the Dems. My favorite line of Krugman’s is that the Republicans “are serious men”, by which he meant that they played a tougher, and longer, game than their opponents.
——–
* To clarify, changing rules during a session requires a 2/3 vote, but it is generally understood that every two years, at the start of each new Congress, each House can set rules for itself by majority vote.
The Republicans will not only change the rules, they will boast about how they got rid of the filibuster those dreadful Democrats were always using to subvert the will of the people, at least until they lose control of the Senate again, at which time the filibuster will become a vital tool for liberty which those dastardly Democrats have been suppressing.
Because Republicans are perfidious, pernicious pricks, and lying is what they do best.
Image: A Judge Going to Court – Thomas Couture (1815-1879)
Sawgrass Stan
Scalia’s an “originalist” (or whatever non-sequitur he uses as a fig-leaf), so it’s worth asking him, “where in the Constitution does it mandate only nine judges?” Was FDR’s “court packing” unconstitutional, or just a violation of precedent? And if Obama (or any other President) should appoint a tenth justice, what would your Originalist “The Constitution-Says-Some-Things-But-It-Doesn’t-Say-Others” argument be to keep your judicial arrogance safe?
Liquid
Ahh, Sarah…At least you can make me laugh in the face of utter devastation.
some guy
ONLY Catholics sodomize young boys
ONLY Republicans sodomize young amendments
ONLY Mormons sodomize young boys
ONLY Brooklyn Rabbis find Yiddish an appropriate language to scare aweay the victims of sexual abuse
Learn How To Totalize, fuckers
BonnyAnne
Faciens quod volo, canes feminam?
I love you, darling. May the propofol be kind tonight.
Also, too, best blog post title
in a long timeat least since the last time I logged on, and you’ve got tough competition around here.Jamie
Time to do what needs to be done, Impeach the Supremes
Jamie
Well, if we’re going to be originalists, lets get started
from the History of the Supreme Court
http://www.historyofsupremecourt.org/overview.htm
The delegates who wrote the Constitution created a Supreme Court in Article III, but left its powers and role somewhat unclear. The First Congress established, in the Judiciary Act of 1789, that the Court would consist of six judges working within a system of district courts and circuit courts. Three circuits, consisting of one district court judge and two Supreme Court justices, heard criminal cases and civil suits as well as appeals from the district courts. The Court also dealt with treaties and those cases in which a state was a party to the case. This meant that the Court was given exclusive jurisdiction over all civil suites between a state and the United States and in cases between two states. All other cases were tried in state courts, with the question of their appeal to federal courts being left uncertain except where clear federal law was involved. All criminal cases, except those involving federal crimes, were adjudicated in the state courts.
Sarah, Proud and Tall
@BonnyAnne:
Roughly, “Doing what we want, bitches”.
I don’t swear to my declension or my conjugation. I spent most of my Latin classes out the back of the school cadging cigars off Tommy Mountbatten, so I just make it up and hope for the best.
BonnyAnne
@Sarah, Proud and Tall:
Sorry–inflection is a bit hard to convey over the internet. I was merely expressing delight, not confusion! Please treat that question mark as more of a Cavuto mark. (Also, I seem to recall that ‘bitch’ may be more accurately translated as canicula, but I only know this because I was a good girl and paid attention, of a sort. My professor was divine in a sport coat.)
Sarah, Proud and Tall
@BonnyAnne:
It’s the inflection that does me in every time.
And professors in sports coats, but that’s another story.
Liquid
eam in irrumabo in
smith
I’m all for term limits for Supreme Court justices. Putting them on for life is a ridiculous, outdated notion.
A 10-year-limit is fine with me. Yes there will be justices that will do damage, but that damage can be lessened by the fact that they will be out of there in a set number of years. Either that or they are off the court by the time they are 65. Whichever comes first.
scav
Having never been lucky enough to be gifted with a Latin prof, divine or otherwise, in or out of a sports coat, could I get away with Perdidisti cardines? It suddenly seems a useful thing to have about. Sunt vobis off tua rocker? seems more of a cheat somehow.
Snarl
Well, the simple truth is, the size of the Supreme Court can be changed by statute, anytime. There’s nothing magical or carved in stone about 9 seats. One seat for each of the circuit courts would make perfect sense, for instance. If we ever had a Congress that didn’t have a 98% Chickenshit majority it would be easy.
For that matter the size of Congress can also be changed by statute, and should be. But that’s another argument.
Sarah, Proud and Tall
@scav:
Nice.
ETA: Duo lateres brevi de camino
Mark van Roojen
Problem is, Clarence Thomas and Scalia were in some even many good senses not qualified on the first days of their terms. Letting term limits go proxy for good judgement about whom one admits to the court isn’t a solution for that problem.
priscianusjr
priscianusjr
@Mark van Roojen: Letting term limits go proxy for good judgement about whom one admits to the court isn’t a solution for that problem.
You said it better than I did! Interesting too that we picked the same two justices as examples, although there are others that come close.
Sarah, Proud and Tall
@Mark van Roojen:
I agree with you absolutely. I just think there is probably a better chance of term limits than of Congress exercising good judgment.
Cacti
Term limits and age limits are barking up the wrong tree. Both of those require constitutional amendments.
The number of Justices, however, is fixed by statute and is the constitutional prerogative of the Legislature.
Amend the Judiciary Act of 1869, and you can contract or expand the membership of SCOTUS. It’s hardly unprecedented either. In the first 80 years of the Republic, Congress changed the number of Justices on 5 separate occasions.
Pox
First post here, and nothing to add, other than that John Paul Stevens is a wonderful man and the last of the true “Justices.” This passage brought a tear to my eye when I first read it in law school, and still does. The best thing about him is that, being in his 90s, he still had a clue what being a liberal lion should mean in America. I’m afraid he is the last of the Louis Brandeis/Earl Warren type to really destroy injustice wherever he sees it.
A Humble Lurker
@some guy:
Dude, as an ex-catholic, if ‘but other people sodomize children too!’ is the only defense you’ve got, it’s a defense not worth making.
greylocks
I’m with those who don’t think the problem should be fixed with term limits. The problem is with Congress not doing it’s job.
Term limits may in fact have the opposite effect. A justice who is nearing retirement may be even more corruptible, with an eye to enhancing his or her value in the private sector.
J. DAlessandro
Daniel Lazare nailed this some time ago – we have an un-reformable constitution that needs to be scrapped, like so many other countries have managed to do, and replaced with something that resembles the 21st century – the Supreme Court is a symptom, not the disease – So is the bloated executive, which is currently engaged in murdering US citizens without even an indictment, and a Senate which invites the ridicule of the world. What sense is there in an institution when about 18% of the population can tie up the rest of the country? Or a system where citizens of Wyoming have 72 times the voting power of Californians? Or the electoral college which seats the losers of popular elections? And our faux ‘ popular historians’ have managed to endow creatures like Jefferson – a proven statutory rapist, gang, and a hypocrite seldom equaled in any country’s history — with a godlike aura, so that we can’t even talk about junking this laughable arrangement without insulting the civic religion.
My prediction: nothing will get done, but the thing will fall of its own corruption and the trimming by the monied interests [who won an historic victory for Romney yesterday, congratulations! I was so worried].
Progressives, or what’s left for them, should work for states rights and de-centralization, more power for Vermont’s citizens to rule themselves. Socialism in one country, so to speak. If you hadn’t noticed, the bulk of this country is pretty hopeless.
By the way, if the lifetime appointment is such a terrible thing, shouldn’t Ginsberg have gotten out last year? If Romney wins, he might get three appointments, and if so, you’ll think this Roberts court was a golden age of civil liberties.
El Cid
Putting a hideously undemocratic panel in charge of determining what may and may not be made law in a Constitutionally formed democratically elected Republic brings with it quite a few contradictions.
bob h
All of the big messes we have today- the ACA SCOTUS case, the big deficits and broken Federal finances, the lingering effects of the Great Recession, the unfinished war in Afghanistan are consequences of five Republican Justices awarding the Presidency to a man the majority of Americans voted against.
RossInDetroit
That painting is great, and strikingly modern. The buildings are handled fairly conventionally. But the figure of the judge, with his long, purposeful stride and bulky robes contrasted with the squatting black turkey is delightful. And take a look at that low, grey sky.
Barry
@priscianusjr: “But that is a mighty sharp knife, Sarah, and it cuts both ways. At one time within living memory, judges, or at least some judges, were known to get wiser as they got older. As much as we’d like to see ideologically driven old fools like Thomas or Scalia, who will never grow wiser, subject to mandatory retirement, it could be a disaster when a wise judge is forced to retire during the administration of an ideological-driven president and congress—which, I need not insist, is a very real possibility in this day and age.”
And those days have passed, probably forever.
Some Loser
Actually, you can impeach or otherwise remove a judge if they become senile. That was stated in the non-exhaustive lists of offenses, or bad behavior?, in the Judiciary Act of 1789 (thanks Jamie).
Honestly, I worry about precedent when dealing with these things. These fuckers are godawful, but I don’t want to (forcibly) remove them just because they made a decision I didn’t like. That works both ways, and it’d ruin the institution of law in this country. If judges aren’t allowed to make unpopular or controversial decisions then there would be no point to the Supreme Court.
Reducing the length of their term from lifetime on good behavior to 16 years or 20 years with a chance to be reappointed may help with the problem of shitty justices if we want to got that route.
I don’t think mucking around with their terms is going to fix the bigger problem: presidents appointing shitty judges. A vetting process must be introduced beyond getting Congress.
Elie
@Sarah, Proud and Tall:
I actually think term limits makes the likelihood of zealotry and short term thinking in candidate selection even more likely… why not be even more reckless in those selections since they won’t be on the court forever?
There is no easy fix for this. We pay — those of us with progressive and liberal values — everytime we take our eyes off the ball and let horrible people get elected to the Congress. Everytime my comfortable friends “sit one out”, worried about their mundane lives, we end up risking horror. The PUMAS and others who go on and on about staying home cause Obama did or didn’t do this thing or that — as though that is the only consideration — THAT kind of short sightedness we and this poor country, pay for in spades.
Some Loser
@Elie:
I don’t think a 16 or 20 term limit with chance of being reappointed is too bad/unreasonable. 32 and 40 years serving should be enough for any body, and it adds accountability to the judges. The problem comes in when we talk about impeaching judges because we don’t like their decision.
The best solution, and the only guaranteed to mitigate this problem, is to stuff Congress with actual legislatures who do their damn jobs rather than play politics all the damn time. So I think you’re right there.
As Kay frequently mentions, liberals and Democrats do not pay enough attention in local elections. Liberals need to address local governments and state governments regularly rather than voting for a president and then waiting for the next term.
The question becomes not how to fix the courts, but how to motivate liberals, progressives, and left-leaning moderates to pay attention to local races and vote for their state representatives.
Judas Escargot, Your Postmodern Neighbor
A term limit of 24 years wouldn’t be all that radical. It’s close enough to what “life term” would have meant back in 1789. It’s also a multiple of 2, 4, and 6 (the other terms), so it’s mathematically neat.
__
On the other hand, were I given the chance to tweak all the terms for the various offices, I’d use all prime numbers (3 for House, 5 for President, 7 for Senate, 23 for SCOTUS). IMO part of our problem now is that the GOP has figured out how to “short circuit” the separation of powers across all the branches. A consistent, unchanging 2-year election cycle of {(House, Senate/3); {House, Senate/3, President}} makes this very easy for them.
__
Using prime numbers would mix up the election cycles so that the elections for different offices wouldn’t synchronize the way they do now (House/Senate/President at the same time would only occur once every 105 years, instead of every 4, for example) making it much harder to cross-coordinate, and weakening the influence that any one political party could accumulate over time.
someofparts
snippet of dialogue from Lord of War –
Supreme Kangaroos. There’s a band name waiting to happen.
someofparts
sorry about the messed up block quote