July 25, 2005

Let's try shaming first.

John Fund has a Wall Street Journal editorial arguing for term limits for Supreme Court Justices:
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.

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.
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.

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.


Stephen Aslett said...

The Constitution already provides a solution for this. It's called impeachment.

If a justice were to hang on to power to the point where he or she became ineffective because of physical illness or mental infirmity and shaming from the public and the other justices didn't work, I think the threat of impeachment would.

True, impeachment is a serious power and should not be used lightly (e.g. for getting rid of judges whose opinions you don't like), but it's there in part to check the judiciary's power. Other than using it to get rid of a judge who has committed a crime, I can't think of a more appropriate use.

amba said...

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.

Ann Althouse said...

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.

Nick said...

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.

SippicanCottage said...

The graveyard is full of indispensable people.

Technogypsy said...

But the problem is what that old dead white guy said "laws multiply as the republic becomes corrupt."

Ann, the problem I see is that Washington and others following his example had both a code of honor and a sense of shame. I think that died before FDR as we develop a social class that felt it has an obligation to take care of the common people. It's worse today and I don't think shame would work, especially since its pretty obvious the media will only shame those they politically oppose as any remenant of fairness appears to be long dead.

Shaming requires a moral force that I fear we as a society are lacking.

Contributors said...

"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.

Roger Sweeny said...

Perhaps we should consider a suggestion made in another context by Michael Barone (and expressed in, of all things, am email to Power Line).


.... 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.

Ann Althouse said...

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.

Sloanasaurus said...

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.

Contributors said...

"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 said...

Let the Constitution alone. How about some self restraint and personal responsibility in the Justices to realize they are no longer fully competent or in touch with reality to hear arguments and make competent decisions. If you are senile, having large medical problems, can't hear-see -comprehend and then articulate your position, then retire. Stop hanging on until death.

Ann Althouse said...

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.

Kathy Herrmann said...

Ann -- While I like your personal responsibility idea, it becomes harder to do when your the elder person staring down retirement.

It would be interesting for some surveyist to do survey to determined who decided when it was time for elderly individuals to stop drving. Was it the elderly person making a volunteer decision? A family member? Or the DMV?

gs said...

Together with the stick of shaming, there ought to be a carrot. I believe that the last time this came up, Ann noted that there is nothing for retired Justices to do. Congresscritters can become lobbyists; Cabinet members can become CEOS or lobbyists; Presidents become ex-Presidents. What meaningful roles can be provided for retired Supremes? (Something having to do with arbitration?)

Like Roger Sweeny, I'm interested in Barone's suggestion of reducing the number of Supreme law clerks. But does it make sense to reduce the Court's staff without also reducing the Congressional and White House staffs? Legislation is written by bright young Congressional staffers; passed on to the President by bright young White House staffers; and reviewed by bright young Supreme Court staffers. No wonder Bill Clinton adapted so quickly to the idea of 25-year-old bond traders having a veto over his presidency: he'd gone to Georgetown and knew how the system works.

Off topic: Barone's most important point relates to the clarity of Supreme Court jurisprudence. I was surprised by the recent eminent-domain and, especially, medical-marijuana decisions. Ann reassured her readers that the decisions are not as outrageous as they might seem. (Maybe they actually are that outrageous, but they're not a strong break with past practice.) Barone has verbalized my unease that reassurance from a con law guru was necessary. Given the complexity of the nation, maybe legislation has to be complex. But the Constitution is about first principles, and it is cause for concern when Constitutional jurisprudence, i.e. reasoning about the principles by which we govern ourselves, is inaccessible to the public. (The previous wording is deliberately optimistic; a starker phrase is 'reasoning about the policies by which we are governed'.)

yetanotherjohn said...


Gerry Daly has a post you might find interesting. He looked at the cases Roberts argued before the SC, threw out the unanimous cases, then looked at the rest to see which justices agreed/disagreed with what side Roberts was working for. Its far from scientific, lots of issues with the facts/issues getting in the way of Roberts skills, etc. But it does raise a counter point to your proposition that Kennedy would move to the left to counter a justice who joined to the right of O'Conner. Given that Roberts seemed to have a better chance of persuading Kennedy and to a lesser extent Souter as an advocate, then he might persuade these two to the right vs drive them towards the left as a counter balance.


Larry in Gibbsville said...

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??

Beldar said...

Those doing the shaming may find it backfiring, a la now-Eleventh Circuit Judge William Pryor's comment while he was the Alabama Attorney General that a particular death penalty issue "should not be decided by nine octogenarian lawyers who happen to sit on the Supreme Court." It was inaccurate (as to ages) and over the top, and he appropriately apologized for it, but it certainly cost him far more than whatever PR rhetorical benefit it was arguably worth at the time.

Dean Esmay said...

In the 1800s the wealthy and powerful had better quality food, more hygienic living and working conditions, and were more isolated from dangerous occupations. Consequently they tended to live longer.

That's still true today, but since today the average middle class person would be considered extremely wealthy by 18t and 19th century standards, that should be no surprise.

Back then it was also not uncommon to assume that a long-lived person was particularly virtuous, BTW. The real difference is that 200 years ago the Supreme Court didn't have the kind of power it has today.

Sonny L. said...
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