Monday, August 22, 2005

Jamo's recommended reading.

"A Court Too Supreme for Our Good" by By Robert F. Bauer, published in Sunday's edition of the Washington Post

While I don't agree with many of the points in this article, it does pose provoke some interesting thoughts. How long should a US Supreme Court Justice serve? Are life-long appointments too powerful? What, if any, should be the limits?

The power of Supreme Court justices today is epic in scale. The cases they hear involve the most difficult and contentious questions before the nation. An alphabetical list would begin with abortion and proceed through campaign finance, church-state relations, euthanasia, pornography, presidential selection and voting rights. And once appointed and confirmed, the members of the court who engage these momentous issues are able to do so for as long as they please.


Many early justices served reasonably brief tenures. The first chief justice of the United States, John Jay, served five years. By comparison, the fourth chief justice, John Marshall, remained on the court for 34 years. Marshall is generally considered the greatest chief justice. But his decision to stay on, unlike George Washington's choice to step down after eight years as president, set the court and the presidency on divergent paths, to the discredit of the court. We are paying for Marshall's precedent today, just as we are the beneficiaries of Washington's foresight.


Why do justices grip the gavel for dear life? Some argue that longevity serves the court well, enriching its work with the vast experience that indefinite terms make possible. But in our system of government, we normally constrain great power with limits rather than license its indefinite exercise.


At 12:50 PM, Blogger Tyler said...

Hmmm. I'd think it would run into the same trouble as Congressional term limits - "I want to limit that guy, but not mine."

Personally, I think we would be better off making an "Justice emeritus" position, where they retire from the bench at some mandatory retirement age (or have some sort of health criteria), where they could continue to hear arguements and write opinions but not be able to determine the docket, ask questions, or vote on the Court's position. Thereby, they would be able to continue to offer their legal opinion and advice without being able to actually affect the rulings of the court. So basically, they would be professional legal commentators.

One think that bothers me elsewhere in Bauer's article are his arguments for "transparency." I think shining the public eye on every aspect of the deliberative process is a bad idea - because that glare would mean rulings would be more reflective of public opinion than good law.

One nitpick - that last paragraph is interesting:
"It is long past time that the media, the Congress and the executive branch act to remind the court..."

What about the people? Or has the media replaced their role?

At 8:07 PM, Blogger Maine Man said...

I agree with Tyler's comment about "the people" but I think the emeritus position sounds a bit too much like FDR's attempt to control the courts during the Great Depression.

The current opening in the court and the controversy surrounding the president's chosen successor shows how political the court could become if any term limits or mandatory retirement were imposed. We would know for sure in which elections these seats would be up for grabs. It would fly in the face of the court's original purpose.

At 11:39 AM, Blogger Tyler said...

Good point. My thinking was to find a way to continue to benefit from their experience without allowing them to actually control the agenda of their court or allow them to make rulings.

At 6:48 AM, Blogger Scott said...

Another solution would be for administrations to nominate candidates who are old enough that their likely life span would limit the length of their service.

Also, the Senate could choose to reject the nomination of individuals who would refuse to retire in the face of evidence that the individual is no longer capable of doing the job.


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