Friday, April 08, 2005
Constitutional Amendment?
There is a conference tomorrow at Duke University Law School on Reforming the Supreme Court? In a commentary in the Wall Street Journal today, Steven Calabresi and James Lindgren discuss one possible reform which is ending life time tenure for the Justices. Specifically they discuss an amendment to the Constitution that would limit the terms of Justices to 18 years. The terms would be staggered so that one Justice's term would expire every 2 years. I think such an amendment has merit. What do you think?
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ikichi voiced opposition to term limits for Justices as well as in general. But, no reason is given. So I wonder why the opposition?
ikichi's reasons to oppose term limits seem to me well worth considering. There are two areas I would like to follow up.
First, consider the following portion of his reasons: "I think term limits are rather undemocratic, precluding the ability of the electorate to reelect people. . . I would ask how it can be argued that limitation of public choice improves democracy." While I am comfortable referring to our system of political economy as a "democracy," I think it is more accurate to describe it as a constitutional republic. I agree that in a sense term limits preclude the ability of the electorate to reelect people. At the same time, term limits will not be imposed on our system of political economy from some external authority. The specific proposal regarding Justices is to amend the Constitution, and this process of amendment is well defined by the Constitution itself. Not only does the amendment process involve our democratic institutions of governance, but the amendment process involves a super-majority. We can recall that the Constitution was amended to limit the number of terms for the President. At one level, such term limits preclude the ability of the electorate to reelect people, but at another level term limits would themselves be the result of choice by the electorate. Further, the illustration of terms limits for the office of President point out that changes at the constitutional level are in a real sense prior to (or at a "higher" level) specific elections for specific offices. Finally on this specific portion of ikichi's comment, limitations on government and those acting in government can make for better government. At least that seems to be one of the ideas upon which our Constitution was written. Congress is expressly limited in its powers, as is the Executive and Judicial branches of government. The Bill of Rights offer specific limitations. The 9th and 10th Amendments were also written with limitations in mind. Limitations in terms may well, in principle, improve our republican form of government.
The second area I want to follow up with is specifically related to term limits for Justices. What is the advantage of granting a Supreme Court Justice a life-time position on the Court? Does this give a Justice a long-term perspective on issues that give us some assurance that the Justice will more naturally tend to consider issues from a constitutional perspective?
Term limits are a valuable tool in limiting power/access to power. At the level of the Supreme Court, it's doubtful that the pool of candidate would be exhausted, as suggested by Ikichi. I'm not certain that, once some time has passed to allow the term limits for DA's to be implemented a bit longer, there will continue to be a limited number of candidates for the position, regardless of the area of the state.
The goal of a life-time position for the Supreme Court appointments may have been to reduce the effects of elections/political pressures on the appointees. There may have some some sense of a longer-term perspective, but I think that was not the primary reason.
Additionally, I've read that it's only been in the more recent past that the tenure has been as long as it is now. Prior, Justices may have died, or left the court after serving a shorter time period. Although there were some long serving Justices, in general the tenure has been increasing more lately.
Why would a longer term foster a more constitutional perspective on issues, as suggested by Publius?
If Justices were appointed every two years for an 18 year term, it would be very difficult to arrange for all the Justices to be of the same ideological bent without having a very long time with no change in political party in the President. It would take a set of circumstances where the same party held on to the Presidency for most of the 18 year cycle, assuming, of course, that Presidents would be successful in finding and appointing Justices of similar ideological bent as they themselves are. Justices can surprise, once they are on the bench, but in general their philosophical underpinnings are evident prior to appointment.
I'm thinking that a longer term offers a perspective on issues that is removed from politics, which seems to me more in the day to day give and take of ideas. A longer time horizon encourages thinking about opinions that will last, as does the commitment of individual judges to respect earlier precedent. The longer the time horizon, the more a Justice can be encouraged to consider issues and principles that are not related to her own situation since the Justice may assume she will not have to look for another job after the Court.
Longer terms do give a longer time horizon and a different perspective. Are you thinking that the term should be longer than the 18 years suggested?
Given that an appointment to the Supreme Court usually wouldn't occur for someone younger than mid-50's, an 18 year term puts a retiring Justice at near current retirement age. But, "retirement" is a moving target with the proposed changes in Social Security, as well as the increasing vigor of Americans of retirement age.
And, what would be the role of a retired Justice--what "jobs" would someone who had served in that role be interested in? Would other public service, including elected positions, be of interest? Would it be comparable to the activities of former Presidents? Over time would there develop a whole cadre of former high public officials, with no defined role but either great wisdom to share or lots of free time and advice to "share" for a price (speaking fees)?
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