A seat on the high court is now so powerful and so heady that many justices stay long past their prime. Legal scholars have concluded that half of the last 10 retirees have been too feeble or inattentive to fully participate in the work of the court.Fund makes a strong argument. (Read the whole thing.) But he does not address how term limits would affect presidential campaigns. We'd know which Justices were slated to leave in the upcoming presidential term. As it is now, we just engage in a guessing game, saying things that are often ridiculously off-base. (In the 2000 campaign we were told the next President would probably get three appointments, but in fact, he got zero.) Maybe the people voting for President should know which Justices are coming up for replacement. And there is something unseemly about the Justices -- supposedly aloof from politics -- timing their retirements to try to control the ideology of the next occupant of their seat.
The secrecy that shrouds the high court can also allow someone to turn his chamber into a nursing home, as William O. Douglas did in the 1970s. He was so determined to hang on until a new president could appoint someone philosophically compatible with him that he refused to leave after an incapacitating stroke. This is not only irresponsible, but for, say, a liberal justice hanging on through a series of Republican presidents, it is directly at odds with the preferences of the electorate. In Douglas's case, his colleagues were so concerned that they informally agreed that during the last year of his service none of the court's decisions would be valid if his was the deciding vote. They finally pressured him to resign in 1975. A weakened Thurgood Marshall often looked to his fellow octogenarian William Brennan on how to vote because he no longer could hear well enough to understand the arguments other justices made during their conferences.
But I still resist changing the Constitution, and even if I didn't, I'm realistic enough to know how incredibly difficult it is to amend. A more moderate approach, which I want to recommend, is shaming.
While we do criticize Justices for their opinions, we hold back from criticizing them for clinging to their seats too long. I think we may be observing the general social norm that frowns on age discrimination and accommodates disability. But maybe we ought to set aside that generality and get specific about Supreme Court Justices: they wield immense power and they cling to it. Why don't we talk about that? Why don't we shame them for staying too long?
We don't spare the criticism for other persons who tighten their grip on power. Before we try to amend the Constitution, let's try shaming. I think the Justices are vulnerable to our criticism. Much as they may love their power, they must also love our good opinion. They must want to be remembered as great Justices. But insulated on the Court, surrounded by respectful admirers -- should I say sycophants? -- they may need to hear stronger voices from the rest of us. Why don't we put aside our stock politeness and say more clearly and more often that it is wrong to hold your seats too long and wrong to let too many years pass without giving the President a chance to appoint someone new.
I'll leave you with this passage from Bill Maher's book "New Rules":
New Rule
Just because you have a job for life doesn't mean you have to do it for life. It's well and proper that we venerate our elders -- but give it a freakin' rest....
Now, I know it must be hard to give up your job when your job is literally sitting on a throne, or being on a "supreme" court, or keeping women out of the priesthood to make room for the gays -- but at some point it starts to look like you think of yourself as indispensible, and no one is indispensible, including you, the late Mr. Infallible...
[T]here's a reason that names like Cary Grant, Joe DiMaggio, and Johnny Carson inspire a special kind of awe: They all did something that made them more beloved than anyone else -- they left before we got sick of them.
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This somehow reminds me of the laws that allow people to continue to drive long after they are a danger to others on the road. I will probably be one of them, as I love to drive and they'll have to pry my veiny old hands from the wheel. The trouble is, the judgment it takes to drive is the same judgment it takes to know you shouldn't drive. As with alcohol, they probably both depart together. I have encountered many families that have had a terrible time persuading an elder that it's time to pack it in, often until s/he has had one or more scary accidents. This is almost impossible to codify in law because the age at which different individuals become incapacitated varies so widely.
Maybe the Court itself ought to inaugurate a tradition of the other members performing a sort of intervention, rather than just conspiring to jigger decisions or prop up the failing one.
Stephen: Impeachment is too unpleasant and abnormal to provide any relief from the problem. My idea is to create a new cultural norm to influence the judges.
Amba: I like the idea of this new norm being enforced internally by the Justices themselves.
Maybe the Supreme Court justices should take a page out of the playbook of our 1st president. Remember... that was back in the time before presidential term limits. People have often said that he could have been King, yet he chose to voluntarily relinquish power... an example which stuck for a long time. In fact, one of my biggest problems with FDR is that he didn't follow that good example. I sometimes think he would have liked to be King. And what happened after FDR was president for more than two terms? We made it impossible for anyone else to by amending the constitution. It was *that* important to us.
More than any tradition in America, the people respect, and find it important that people be willing to voluntarily give up power. Its the sign that the job is more important than the person, and that the will of the people is more important than the will of one person. In that regard I think its a shame that we did inact term limits. There is no grand gesture any more for presidents to make when they don't run. I think it takes something away from the office.
Perhaps this is a lesson that the Supremes need to learn. There is more dignity to leave of your own accord, and make that gesture to the office than there is to die on the bench cause you couldn't give it up.
The graveyard is full of indispensable people.
"And there is something unseemly about the Justices -- supposedly aloof from politics -- timing their retirements to try to control the ideology of the next occupant of their seat."
Why? The stakes are enormous here. I'd wait. I'd wait on a respirator if I had to. I'd do a "Weekend at Bernies" on the bench if I had to. What's wrong with believing so strongly in what direction the country will go that you time a retirement?
Liberal or conservative -- it's not unseemly at all. And if they manage to remain aloof from politics -- they certainly are not aloof from a judicial philosophy. They're trying to preserve what they've dedicated their lives to. How could they not do that?
Unless it's about mental competence -- I don't understand this age concern at all.
Now shaming judges, I'm all in favor of. But not because of their age -- that's just silly. But shaming their decisions should never stop. These justices are not above the whithering criticism the two other separate but "equal" branches of gov't get.
Perhaps we should consider a suggestion made in another context by Michael Barone (and expressed in, of all things, am email to Power Line).
http://powerlineblog.com/archives/011132.php
.... As a former law clerk to a federal appeals court judge (the late Wade H. McCree, Jr., of the Sixth Circuit), I have long felt that the Supreme Court justices have too many clerks. Some time ago I took a look at the statistics in the annual Harvard Law Review issue on the Supreme Court, and found that each time there was an increase in the number of Supreme Court law clerks there was also a step increase in the number of separate concurring and dissenting opinions. In the 1920s, when Chief Justice Taft encouraged unanimity and when justices had one or zero law clerks, there were few dissenting opinions and very few separate concurrences.
.... My radical proposal, which I am sure will never be adopted, is: reduce the number of Supreme Court law clerks to one or two. My expected result, were this ever to be done: many fewer separate opinions and clearer, more straightforward opinions that intelligent citizens could easily read in full. Try reading the opinions in most important cases today, and you need to set aside several hours and start by making a flow chart of which justices agreed with which sections of the majority (or plurality) opinion and with which sections of the separate dissents or concurring opinions. Supreme Court jurisprudence has become unfollowable even for intelligent, interested citizens. Almost no one goes through this exercise except law professors, law review editors and members of the bar who are paid upward of $500 an hour for doing so. ....
Having many clerks makes it easier for someone who can't do the work to nevertheless "get the work out." And let's face it, clerks are like the perfect children (or perhaps grandchildren). They're bright and accomplished. They look up to you, stroke your ego, and do just about whatever you want. In any group of four clerks, there's probably at least one who makes the Justice want to get up and come into the office, whether that's in the best interest of the country or not.
Roger Sweeny: The clerks are part of the problem, for sure. They triply shield the Justices: 1. they are the little admiring society around the Justice shielding him from real feedback, 2. they make the work look perfectly professional no matter how inept the Justice is, and 3. as former clerks, they become law professors, and continue spreading the admiration and toning down the criticism.
Going back to two Clerks could be a good idea. This would at least require a sitting Justice to do more actual work.
Perhaps all we need is some sort of public display by the Justices once per year. For example, Justices should be required to participate in some public panel of discussion to see if they are competent enough to engage in any intellectual thought. We make the elderly take a drivers test each year after a certain age, why not Supreme Court Justices.
"But he does not address how term limits would affect presidential campaigns. We'd know which Justices were slated to leave in the upcoming presidential term."
Excellent point, Ann: Imagine how much more politicized the SC process would become? And if we knew at what age retirement would come, we'd still know how many picks a President would get. Things are ugly enough with the Democrats getting a few months notice. This would give them years. And I say Democrats because Republicans have been very civil in this arena.
It's all a very very bad idea.
Charles: I like the less law/personal responsibility angle.
I would have a much higher standard. As someone with a lifetime job myself, if I felt I was in significant decline, even though I could still struggle along, I would feel obliged to retire.
I thought I had a good argument for term limits: Did the framers of the Constitution ever dream that people would live to their 80's and 90's??
I looked up average life expectancy for that period, and from what I could find, 40 years was the average lifespan around 1800 in the US. Hardly time to serve a 20-30 year term as a Justice, and maybe why a lifetime appointment wasn't a bad idea...
But then I dug a little deeper and saw that, except for George Washington who died at 67, the next 4 presidents lived to be over 80! Even Ben Franklin clocked out at 84...
So my argument doesn't hold water. Maybe a better question: Does politics make you live longer, or does it just feel that way??
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