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.
Posted by the phantom speaks at 3:13 PM