The skewed perspective of a conservative Catholic employee-side employment lawyer living in the most exciting city in the Milky Way, Las Vegas, Nevada USA, who listens to a lot of really strange music and who, for some reason, lives and dies St. Louis Cardinal baseball

2/19/2005

Term Limiting the Supreme Court

Via Instapundit, I find this story in the legal/political blog Volokh Conspiracy, that a gaggle of whiney law profs has drafted legislation limiting the term of a justice of the United States Supreme Court to 18 years - with one new seat being appointable with each two-year session of Congress.

As we like to say here at Blog Retrofuturistic: It'll never work. People will die.

First, despite the clever lawyerly argument proffered at Volokh, it is blatantly unconstitutional. Article III grants life tenure to a federal judge. For better or worse. You don't like it, your obligation (if you genuinely respect our system of governance) is to amend the constitution, not pass a statute. Volokh puts forth the position that boils down to this: you still serve on the Court after your 18-year term is up, you just don't get to vote on the final decision unless there's a vacancy in one of the nine higher priority seats ahead of you. No. Sitting on the Supreme Court means deciding cases. For life. Or until resignation. Not until a clever lawwyerly procedural technicality means your vote is up. (Randy Barnett at Volokh is not making these arguments himself; he's merely setting out the position that the proponents are taking.)

I find the whole idea of finding wordsmithing ways around the plain meaning of the U.S. Constitution to be patently offensive. The law profs who drafted this "bill" are guilty of such.

Second, the term limit proposal will make the Court even more susceptible to responding to prevailing political winds. There would be an increased likelihood that the politics of the Court will be in sync with the politics of Congress. Consensus in Washington is rarely a good thing for the public interest. And the justices would be looking toward there next job, perhaps politics, a la Roy Moore on the Alabama Supreme Court.

If you think the Supreme Court justices are out of touch, this is only a problem if they have too much power. This is going to brand me as a dangerous reactionary, but I also thought that the power of judicial review from Marbury v. Madison was a blatant, extra-constitutional power-grab that upset the delicate balance of power in our three-legged system. Why should the judiciary, the branch most entrenched into its position under the constitution, be the one that is the final arbiter of what is, and what isn't, permissible under the constitution? Why not one of the political branches?

People who think like me lost this argument, oh, about 202 years ago. But if you have a problem with the responsiveness of the life-tenure branch of government, don't make it more like the political branches. Restrict its authority instead, if you are so inclined, and let's keep one branch insulated from the politics of the moment, as best we can.
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