Wednesday, December 26, 2012

Limiting Supreme Court Justices Terms

For at least 6 years law professors at Duke, Cornell and George Washington University Law School have tried to interest the public in the problem of our Supreme Court, its dysfunction, its arrogance borne of immunity and its radicalization.

Various proposals have been advanced, most of which do not require amending the Constitution, but "simply" require an act of Congress, which means, of course the Senate and the House.

One idea which appeals to Mad Dog is simply allowing each President two Supreme Court justice appointments per term, allowing 4 for a two term President. The 9 most recently appointed justices can vote on cases. Any can write an opinion.

The disadvantages of this approach have been well recited:  1. "Whipsawing" the court, bringing it from conservative to liberal to conservative, as the cycles in Presidential elections occurs.  2. "Politicizing" a Court which is supposed to be above politics, deciding cases on the basis of where the law leads them rather than what they think the law ought to be.

As for "politicizing" the court, this could hardly be a more naive argument: The Court has demonstrated since its inception, through Dred Scott (slaves are property, not people) and Brown vs Board of Education (segregated schools are inherently unequal) to  Citizens United (corporations enjoy rights to finance elections)  to District of Columbia vs Heller (2nd amendment guarantees individuals the right to own guns) to Florence (strip searches of any citizen arrested, before arraignment or trial, to protect the jailers are legal) to even Bong Hits for Jesus (principals, as authority figures, can exert their authority to enforce their own political views on students) to the decision to end the vote counting in Florida and give the Presidency to George W. Bush, the court has demonstrated consistently the sort of decisions they make are made in territory where the law ends and personal philosophy and political belief rules--a court of authoritarians will predictably always find for those in power and against those underdogs, whom the founding fathers meant to protect.

As for "whipsawing" the court, i.e. creating change in the court too quickly for the good of country, is this better than the current system which allowed Richard Nixon 4 appointees and Jimmy Carter none? Is the current system, which has implanted four radical conservatives on the bench who are likely to serve 20 more years, on average, better than a system which would predictably replace justices every 2 years?

And, if the President had this power, would it not be more apparent and visible to the voters the importance of the President as a man who appoints Supreme Court justices?

The business of the Senate comes to a halt every time a Supreme Court justice comes up for appointment, because the Senators know this appointee, unlike any elected official may serve, immune to all law and review, for two or three decades, influencing the direction of the country far more than any bill they may vote on over the course of their own personal lives in the Senate. With two new justices every 4 years, there would be time for a natural correction and turn toward another path.

What is needed, if we can agree on the value of this approach is a media and marketing campaign in the media to force Congressional action. I have been in email connection with these professors of law, all of whom have said the virtues of the new system are obvious, the dysfunction of the current systems is obvious--all that is needed is a concerted effort on the part of citizens. 


  1. Mad Dog,
    Well, your argument is growing on me. I guess the repeated listing of the Court's decisions over the last four years is so offensive that the idea of change becomes more appealing. I do still have some, as you say "naive", concern that this might make an already political court more so. However, there isn't any Supreme Court scenario without a downside and more political but changing does seem preferable, I have to admit, than a lengthy, indefinite period with Roberts and the Gang in the majority. One can only imagine the many poor decisions still to come.Just think of the public outcry though, if this was proposed..

    On another subject, I was wondering if you were happy with your non-traditional religious education or did you think you missed something -was your own children's religious instruction non-traditional? I ask because my religious education was strict and very traditional but that was not how I raised my kids and have over the years thought I may have done them a disservice by not providing a substantial enough religious foundation to weather life's most difficult times.( Additionally there's the small but recurring fear that my dropping the religious ball may result in their joining some crazed religious cult at a later date) I'm not saying they had no religious instruction-they did, but I was the provider and it was shall we say sporadic....

  2. Maud,

    It's really hard to avoid religious thought in this country, so even without formal instruction: what the Catholic Church, the Jews, the Mormons, the Baptists say is readily available.
    Personally, I'd rather have religious teaching begin when kids are old enough to react to it with reason.
    A liberal arts education asking the big questions is a good alternative.
    On the other hand, during internship, seeing so much death at age 26, I was clearly more adrift than my Catholic friends, who were more prepared with ceremony, belief, and they seemed a lot older and more composed than I was, and the rest of my heathen friends.
    My kids were raised, like yours, with no go to church Sunday school taught by authority figures and they seem to be ethical and very capable of moral analysis.
    My wife always wanted to throw some authority at them: She went through Mormon, Catholic, Protestant herself and tried, of course, Unitarianism, but even that attempt ran up against the authority at the front of the congregation.
    There was a River Road Unitarian church in Bethesda, Maryland where people gathered on Sundays, before the service, to discuss the big questions and even my very secular father put on a jacket and tie and never missed a meeting.
    On the other hand, one of my sons went to a Quaker school in Washington, DC, which seemed fine at first, but ultimately some of the students there were accused of "blasphemy" by the Head of School after a meeting, and threatened with expulsion for a parody poem they recited. And that was Sidwell Friends School, a pretty open minded place as church schools go.
    No answers from Mad Dog, only questions.