Tuesday, April 12, 2005

Volokh co-conspirators Orin Kerr and Jim Lindgren have come out in favor of a proposal to limit the terms of US Supreme Court justices to 18 years. Co-conspirator Randy Barnett is also somewhat sympathetic.

My response: why not 4-year terms for Supreme Court justices, commencing at each presidential inauguration? To paraphrase Shaw, we've determined what they are--now it's just the duration we're bargaining over.

The justifications for 18-year terms--that they might make the Supreme Court more "modest" and responsive to public opinion, and presidents less inclined to appoint young, inexperienced justices, in the hope of influencing the Court for 50 years--effectively concede the point that the justices' role has long ceased to be anything even resembling neutral, dispassionate application of the Constitution and federal statutes. It is apparently now widely acknowledged that candidates are nominated by politicians for the sole purpose of enshrining particular political viewpoints--even constituencies' interests--in Constitutional and statute interpretation. Given, then, that the justices' role is a de facto political one, what's the argument for not making them every bit as accountable as any other political actor?

Of course, once they're political actors, it's hard to see what benefits they provide that aren't already covered by the other democratically accountable branches of government. Then again, perhaps if they had simply stuck to being judges in the first place, and hadn't succumbed to the temptation to abuse their powers for nakedly political ends, then they might not seem so utterly superfluous now.

33 comments:

Anonymous said...

I think it's telling that the people supporting the constitutional ammendment are legal scholars and not political scholars.

I'm curious who thinks the justices are more powerful than the President. They probably are more powerful than the Congress, but only because Congressional members have allowed themselves to become dominated by the party system.

EKR said...

Well, there's an obvious reason not to have the Supreme Court justice terms coextensive with the Presidential term--the same reason that Senator's terms don't all end at once--to provide some institutional inertia by forcing overlapping terms.

Dan Simon said...

Sure, they can provide "institutional inertia", just like senators (or career civil servants, for that matter). They can also faithfully execute the wishes of the president who appoints them, just like cabinet secretaries. And they can apply the current administration's interpretation of statutes to individual cases, just like politically appointed regulatory agency officials.

But what role can they play that isn't already played by the existing political players? Their old role--interpreting the laws and the Constitution in an independent, apolitical manner--was at least something that only an appointed judiciary can do. But the term-limiters seem to be conceding that they don't even do that anymore. Their remaining activities are all already performed fairly well by other parts of government. Doesn't that make them completely redundant?

Anonymous said...

It seems to me that the role the Supreme Court justices play is expressing the will of the few, i.e., the elite, whereas Congress expresses the will of the many. As Aristotle and Thucydides said, any successful government has mechanisms for allowing both the elite and the masses to influence policy. There are a number of reasons that the Supreme Court has taken on this role in the 20th century, including the direct election of senators, the professionalization of politics, which means that men of substance do not normally hold political office, the increased importance of postgraduate education in determining status etc.

Of course, analysis at this level of generality does not pinpoint the optimal Supreme Court term, but it does hopefully refute simplistic talk about deferring to the people's political representatives, which would simply mean mob rule.

Dan Simon said...

So many questions....

- Who are "the elite"? How are they chosen? Is it wealth? Education? Fame? Attractiveness? How can we be sure that the US Supreme Court is "expressing [their] will", whoever "they" are? And why should that claim of representing "the elite" entitle the Court to absolute power over the government?

- Why is talk about "deferring to the people's political representatives" so "simplistic", rather than simply democratic? If this is "mob rule", then what's wrong with it? How do so many of the world's parliamentary democracies--which generally do not give their courts the power to overrule their legislatures--survive it, if it's so obviously disastrous?

- What about other social institutions? Do you believe that the economic marketplace needs a voice for "the elite" to balance the "will of the many"? Are free markets an example of doomed "mob rule"? Should stores have to tailor their merchandise to please "the elite", rather than "the masses" who shop at them? How about corporations? Does shareholder democracy need to be diluted with a dose of interference from society's elite? Or the media--should "the elite" be able to dictate, to some extent, what news outlets publish, or what shows are broadcast to "the masses"? How much, exactly, are you willing to let your life be governed by people whose only qualification is having high social status?

EKR said...

"How much, exactly, are you willing to let your life be governed by people whose only qualification is having high social status?"

Isn't that pretty much who ends up getting elected to office now?

Dan Simon said...

Eric, I strongly disagree. Politics has become a highly professionalized business, and most successful politicians have spent years honing their political skills in numerous campaigns (or in related fields, such as entertainment or the press). Conversely, it has become increasingly common for candidates whose only qualification is high social status (e.g., scions of famous political families, wealthy entrepreneurs, or celebrities) to flame out spectacularly on the campaign trail.

There are famous counterexamples, of course--but they mostly support my point. The Bush brothers, for example, were heavily involved in their father's presidential campaigns. (In contrast, various Kennedys and Cuomos have had much less electoral success lately.) Arnold Schwarzenegger wasn't just an actor--he was a spectacular self-made media phenomenon. (Contrast him with Jesse Ventura, who was created by the wrestling industry's media machine, and turned out to be a complete failure as a politician.) And for every John Corzine or Michael Bloomberg, who spends his way to election, there's a Michael Huffington or Al Checchi, who tries the same trick and founders due to abysmal political skills. Eventually, I expect, only talented, experienced politicians will be able to master the political skills necessary to beat similarly talented, experienced opponents.

Anonymous said...

Dan when you wrote, "Their old role--interpreting the laws and the Constitution in an independent, apolitical manner--was at least something that only an appointed judiciary can do." when exactly was this period? The time until the first justice took office? The first justices were the MOST political of all of the justices. How else could you fight for the political power of your institution?

The justices have always been influenced by political forces. Legal scholars typically don't see it, because they don't understand politics.

Dan Simon said...

By "old role", I mean "previously attributed role". I agree that American judges (like Americans in general) have always enthusiastically embraced heated political partisanship. But they have not always been so frank about it. Historically, the legal community has preferred to present a facade of aloof non-partisanship. Not since the 1930s, though, has that facade been so lightly worn--as demonstrated by the term-limit proposal, which comes close to explicitly acknowledging the blatant politicization of the bench.

Anonymous said...

I really don't understand where this is coming from. The justices supported slavery for the better part of a century as a political adaption. There are many other examples.

The term-limit proposal was originally made famous by Karl Rove in Texas 20 years ago. The long documented goal was to shift political power on the court. The term limit proposal wasn't scary to Rove, because he had adeptly figured out how to change the rules for the political system to elect his cnadidates for a very long time.

The unlimited term was specifically designed to help protect the country from the national success of this type of strategy.

Dan Simon said...

I understand that various political people have proposed various means for limiting or manipulating the court's power over the years. What's new about the current proposal is that it comes from the legal community, not the political world. In other words, the facade of judicial independence has cracked even in the eyes of many legal scholars. If even they don't believe in it anymore, why does anyone else paying lip service to it deserve any credibility?

Yes, the unlimited term was clearly originally conceived to protect the country from attempts to politicize the judiciary. And as you yourself admit, it has never, ever worked. The problem wasn't that the justices' terms were too long or too short. It was that they were given horrifyingly broad powers over the government, with no effective accountability mechanism. Their abuse of that unaccountable power for political ends was always a temptation, and they inevitably succumbed to it early, often and egregiously.

No doubt the current term-limiting movement is more motivated by politics than by concerns about judicial accountability. (So are its opponents, for that matter.) But the fact that they are all speaking so frankly about a politicized judiciary demonstrates that the current unlimited terms are doing no better than a limited term would at creating judicial independence. Since judicial independence has always been the justification for the Supreme Court's judicial review powers in the first place, those who argue for the Court's retention of those powers are left without a leg to stand on.

Anonymous said...

The facade of judicial independence was always a fantasy told in children's books. The judiciary is encouraged to take the long term view, and they still do. The unlimited term continues to allow them the freedom to take the long term view.

The unlimited term was never established to stop the politicizing of the judiciary. It was established to stop the SHORT TERM politicizing of the judiciary. And it works very well at this.

While you see an erosion of justification, I see people just waking up to how the court works. And they're angry that they can't change its politics to make it more accountable. But those are the breaks. If you want to change the American government's policies in any meaningful way, it takes a long time. By design.

True conservatives and liberterians will recognize the way to deal with this problem in the first place -- give government very limited power to get involved in our lives. The more limited, the less likely that the court will need to decide whether government should be involved in our life.

Dan Simon said...

You appear to be saying that the purpose of the court is to assist in extending the reach of past administrations' political outlooks into the long-term future, to make it more difficult for the current government's policies to change in response to recent shifts in popular opinion. In fact, there already exists a mechanism to effect this--it's called "gerrymandering", and most right-thinking people agree that it's a horrible thing, undermining democracy and accountable government for the sake of protecting outdated, unpopular and often corrupt political interests.

I suppose it's interesting to hear somebody actually standing up for discredited past political orders, sort of the way a previous commenter defended giving unaccountable power to society's "elite". But until I hear a serious, plausible argument--other than, "that's simply the way it is/always has been/ought to be"--for this sort of negation of democracy in favor of one or another unaccountable establishment, I'm going to stand by my preference for democracy--and my appalled scorn for these proposed quasi-authoritarian alternatives.

Anonymous said...

That's an interesting intepretation of my comments, but standing up for discredited past political orders does not equate to taking a long term view of what is best for the country.

If you saw the Tim Russert interview with 3 S.C. Justices on CSPAN2 from Thursday, you would see Justice Nino Scalia making the argument that the left-leaning justices have politicized the court for the past 50 years. Justice O'Conner's answer: not likely.

Scalia calls himself an originalist, yet he admits that the definition of cruel and unusual punishment may change from "placement in the stocks" to "extended periods of time of sleep deprivation". As O'Conner says, certain portions of the Constitution are obviously more elastic than others. You're arguing that we should eliminate jutices from thinking about the long term view because there is discrepancy about the intention of the framers in dealing with the elasticity of a few of the areas of the consitution that allow themselves for intepretation.

Dan Simon said...

Look, I did the best I could with your somewhat incoherent account of the Court's role. You conceded that the justices have always been politicized, and then asserted that they're supposed to take the long-term (presumably political) view rather than a short-term one. What does that mean, if not that their goal is to extend their political influence into the long-term future?

Or are you claiming that unaccountable, politicized judges are somehow inherently better at divining the objective long-term interests of the country than accountable politicians? That sounds like an odd claim--wouldn't having a guaranteed job for life make anyone rather less focused on ensuring the country's long-term well-being? And regardless, doesn't any political partisan--as you've conceded the justices generally are--believe that the extension of his or or her partisan faction's power into the long-term future is objectively in the country's long-term interest? In other words, doesn't "taking the long-term view", for politically partisan judges, mean exactly what I said it meant: extending their political influence into the long-term future?

As for Scalia and O'Connor, I'm well aware that even those two are fair-weather friends of democracy, at best. And please don't mistake me for an "originalist"; Founder-worship isn't my religion. My notion of the Supreme Court's role is based on what system of governance I think works best, not on what a bunch of British colonial traitors might have had in mind a couple of centuries ago. And I believe that the proper role of the judiciary in a functioning democracy is an extremely limited one, out of respect for the inherent superiority of democratic self-government over judicial authoritarianism.

Dan Simon said...

(Reposting comment)

Look, I did the best I could with your somewhat incoherent account of the Court's role. You conceded that the justices have always been politicized, and then asserted that they're supposed to take the long-term (presumably political) view rather than a short-term one. What does that mean, if not that their goal is to extend their political influence into the long-term future?

Or are you claiming that unaccountable, politicized judges are somehow inherently better at divining the objective long-term interests of the country than accountable politicians? That sounds like an odd claim--wouldn't having a guaranteed job for life make anyone rather less focused on ensuring the country's long-term well-being? And regardless, doesn't any political partisan--as you've conceded the justices generally are--believe that the extension of his or or her partisan faction's power into the long-term future is objectively in the country's long-term interest? In other words, doesn't "taking the long-term view", for politically partisan judges, mean exactly what I said it meant: extending their political influence into the long-term future?

As for Scalia and O'Connor, I'm well aware that even those two are fair-weather friends of democracy, at best. And please don't mistake me for an "originalist"; Founder-worship isn't my religion. My notion of the Supreme Court's role is based on what system of governance I think works best, not on what a bunch of British colonial traitors might have had in mind a couple of centuries ago. And I believe that the proper role of the judiciary in a functioning democracy is an extremely limited one, out of respect for the inherent superiority of democratic self-government over judicial authoritarianism.

Anonymous said...

I might agree with you if the court wasn't the only mechanism left in America to put the brakes on mob rule. The long term view is about protecting ourselves from ourselves. It's about protecting minority rights from the majority. The court doesn't have the power to do anything but serve as a conscience. And it should be just fine for all of us if differing political views contribute to debating the implementation details of serving as that conscience.

Dan Simon said...

You know, in all my time debating politics, I've never heard the words "put the brakes on mob rule", "protecting ourselves from ourselves", "protecting minority rights from the majority", or "serve as a conscience", used in reference to a person or group that the speaker disagreed with more than he or she disagreed with majority public opinion. I've never heard anybody say, "that person or group has completely crazy, dangerous, evil ideas--but thank goodness he/she/they can put the brakes on mob rule, protect their minority view from the majority, and serve as the nation's conscience by enacting their crazy, dangerous, evil ideas undemocratically, in the face of vehement popular opposition."

No, phrases like "put the brakes on mob rule" and the rest have always been rather unsubtle code words for "it is important that my preferences win the day, even if the majority prefers otherwise." The problem, of course, is that your minority views aren't always the ones that get to run roughshod over democratic sovereignty. (Liberals should have learned that lesson after Bush v. Gore, but it seems that they haven't.)

No, I don't always agree with the majority. But I have much more faith in their avoiding crazy, dangerous, evil ideas than I do any particular group of nine people in black robes, even--or rather, especially--if the nine happen to be distinguished legal scholars. That's the genius of democracy: the people may not all be brilliant or even sane, but their stupidities and lunacies tend to average out better than any smaller group. Any nine people of similar academic backgrounds, on the other hand, are bound to share a hefty number of stupid and/or crazy beliefs. And any astute observer of the Supreme Court should have noticed that by now.

Anonymous said...

I wish it were true that I were a Democratic minority, but, alas, I am a Republican. And I am a boring white Republican. Faithfully married to one person and heterosexual. Raised in Catholic schools and with the Disney channel.

And while you've provided a hodge-podge of entertaining rhetoric, the Constitution provides mechanisms for protection of minority viewpoints. And I am not ready to turn over the protection of the Bill of Rights from 9 people with academic backgrounds and demonstrated judicial prudence to the President and the U.S. Congress.

Of course we have no reason to question the capabilities of democracy to make quality decisions about protection of rights. Democracy has such a strong track record of not intentionally abusing rights. After all, democratic men and institutions didn't write slavery into the Constitution and support it for years. With such a track record, maybe we can vote to execute all the gays next week.

Dan Simon said...

You're right that it isn't only liberals who are enthused about imposing their ideas undemocratically via the judiciary. Conservatives are quickly warming to the idea as well, now that they're close to having the power to benefit from it. And radical fringes of all varieties--libertarians, Marxists, religious fundamentalists of various stripes--never had any hope of winning power by democratic means, and hence have nothing to lose by embracing judicial authoritarianism.

But your comparison of the record of the judicial branch with that of the other branches is inaccurate. Ever heard of Dred Scott? The Supreme Court spent the vast majority of its history collaborating in--and even exceeding--the racial injustices perpetrated by the democratic branches of government. It owes its reputation as a stalwart defender of the right and the good on racial matters largely to a single decision--Brown v. Board--that had no practical effect, and was only a decade ahead of much more far-reaching, and effective, legislative action on the same issue.

As for "demonstrated judicial prudence"--you yourself have admitted that the courts have always been politicized. Between two politicized bodies, I'll take the one that's democratically accountable, thank you.

Anonymous said...

I'm very aware of the Scott decision. And I'm also aware of the politics in the country surrounding slavery from 1789 through 2005. The Supreme Court record on slavery is telling as to why it is an imperfect and political institution. But it also shows why it is a useful institution.

There is no way to build a compelling counterfactual of what may have happened if the SC had ruled differently in Brown. Just as there is no way to know what may have happened if the court were structured differently and had to rule on Bush v Gore. But the purpose of the institution is clear -- to serve as a balance against an emotional rather than reasoned swell of popular opinion.

Dan Simon said...

Please, do tell me why "the Supreme Court record on slavery....shows why it is a useful institution". Slavery was abolished in the 1860s by presidential order, in spite of a Supreme Court that sought to preserve and even extend it. What part of the Supreme Court's contribution was "useful"?

And your description of the Supreme Court's "purpose" seems to keep changing. First it was expressing the will of the "elite" (or was that not you?). Then it was "putting the brakes on mob rule", "protecting minority rights from the majority", and "serving as a conscience". Now it's to counterbalance "emotional rather than reasoned...public opinion." Each time, I point out that (a) the Supreme Court hasn't, as an empirical matter, fulfilled the claimed purpose, and (b) there's no reason to believe that the purpose is likely be better fulfilled by a panel of nine unaccountable, politicized judges than by an accountable democratic government.

This instance is no exception. The distinction between "emotional" and "reasoned" opinion is specious to begin with--read your Damasio. And there's as much emotion in any of the Court's supposedly "reasoned" controversial decisions as in any political speech on the same subject.

But then, you've already conceded that the courts are rank with politics. Why do you expect judges' politics to be more reasoned than anyone else's? Because you happen to agree with them more often?

Anonymous said...

I have not posted all the comments as anonymous in this thread.

I would characterize this discussion as you desperately attempting to explain why you think the Constitutional power of the court should be changed while I offer different reflections of why it works fine. You are still desperately seeking justification for a position which is not law and has no chance of becoming law any time soon.

Dan Simon said...

I don't see why anyone would characterize my arguments as "desperate". After all, I'm not the one constantly shifting positions, nor are my arguments repeatedly getting thoroughly refuted.

I'll agree with you, though, that Americans are not about to abandon judicial authoritarianism. That's because so many of them are stubbornly, irrationally wedded to the idea, based on the kinds of easily-refuted arguments that have been posted here. Ironically, distrust of democracy runs exceedingly deep in American culture.

Anonymous said...

You haven't refuted any of the arguments, and it is obvious that you've forgotten that we don't live in a democracy. The United States is a democratic republic.

There is no major power implemented as a pure democracy because there is real fear that some whack job who calls a branch of government with no direct power an "authoritarian regime" might actually influence the populace for a second and do something like kill a few million jews.

Dan Simon said...

The democracy/democratic republic distinction is meaningless--there are lots of "democratic republics" in the world with no or minimal judicial review. Moreover, it's of little interest to me what the US is, and of much more interest what it should be.

What on earth makes you think that if a popularly elected government wanted to massacre a minority group, the Supreme Court would lift a finger to stop them? The Court acquiesced in slavery, Jim Crow, the internment of the Japanese, and every foreign brutality committed by US troops throughout its history. It did, on the other hand, try to forbid restrictions on child labor and workweek lengths in the thirties, and force children to go to school far away from their homes in the sixties. For the most part, when it veers from popular opinion, it's in the direction of nutty ideas that eventually get completely discredited.

Anonymous said...

The democracy/democratic republic distinction is not meaningless in the United States. It influences our politics in many ways, including the election of the President and the bargaining power of individual Senators. The justices work within this political system to balance power.

Your surface portrayal of court actions in the past do not match the views of respected analysts. It's actions, when it veers from popular opinion, must be evaluated in terms of the best interests of the country at the moment of the decision. Your Monday morning quarterbacking looks a little flimsy in comparison. As the country has matured, the political effects of the court decisions are very different.

You are not advocating the popular election of justices. You are advocating giving a President more power.

Dan Simon said...

The notion that "America is a republic, not a democracy" hasn't in itself been influential. Rather, this meaningless phrase has long been used as I kind of question-begging rhetorical cover for those who oppose the democratization of the American system of government--or, more often, for those who oppose the majoritarian position on some particular issue. If the invidious "democracy/republic" distinction didn't exist, it--or an equivalent--would have been invented the first time somebody didn't like some democratically enacted decision, and wanted an excuse for using one or another anti-democratic tactic to derail it.

I have no idea what your second paragraph is supposed to mean. Do you intend to say that although the Supreme Court's depradations against the popular will can generally be seen as disastrous in retrospect, they were nevertheless often praised by "respected analysts" at the time? That's hardly a rousing defense. On the contrary, it suggests that the democratically elected branches of government are generally wiser, in the long-term, than either the Supreme Court or any era's "respected analysts".

Or do you mean to say that certain "respected analysts" today interpret the Court's appalling record more sympathetically? I believe this fallacy is known as "argument from authority". To paraphrase my mother, what if these "respected analysts" told you to jump off a cliff? If you have an actual case to make for the Court's wisdom in retrospect, I suggest you attempt to stack it up against mine, rather than invoking certain nameless "respected analysts".

As for "giving a President more power", I don't see why anything I advocate would affect the balance between executive and legislative branches of government. All I'm asking is that power be removed from a panel of unelected, unaccountable elders, and distributed among elected, accountable leaders. If you don't think that's a good idea, then why not get rid of the elected branches of government altogether, and simply replace the Senate with the Galactic Empire--er, the Supreme Court?

Anonymous said...

Your comparison of the Supreme Court to the Galactic Emperor highlights the fallacy in your logic. The Supreme Court cannot order any government actor to do anything. Nothing. The Supreme Court can't order the lowest paid Postal Employee to stop chewing gum at work.

The Galactic Emperor, like the President, gives orders. You seem to be able to tell that the Galactic Emperor is bad if given too much power. It's telling that you can't see why giving the President additional powers is more dangerous than it is worth.

Dan Simon said...

Really? The Supreme Court can't, for example, order Florida poll workers to stop manually recounting votes (as they had been ordered to do by the state Supreme Court)?

"The Supreme Court can't actually order the government to do anything" is one of those reality-ignoring mantras--like "the Supreme Court is above politics"--that help protect the imperial judiciary from the righteous outrage of disenfranchised voters. In fact, courts have been intervening directly and forcefully in the administration of government for decades. A number of local school boards, for example, were literally taken over by judges, who designed elaborate integration plans and then directly ordered the school boards to implement them. In a famous case in Yonkers, the federal court fined the municipality a million dollars a day until it agreed to move a public housing project to a location that the court thought more appropriate. In other cases--such as redistricting plans in the South, or marriage laws in Massachussetts--the courts have simply repeatedly "stricken down" government decisions, until the government in question arrived at a "decision" that was to the court's liking.

Presidents, of course, can also give orders. But they are subject to political constraints--their positions, and the positions of their party allies, depend on the goodwill of the public. And if a president attempted to micromanage even a federal department the way that federal courts have sometimes micromanaged local governments, the public outcry would be deafening.

Indeed, the public outcry was deafening in all the cases of judicial tyranny I cited above. But judges don't have to care about public opinion--they're "above politics", after all. And, sure enough, they didn't. The Galactic Emperor himself couldn't have exercised his power more arrogantly.

Anonymous said...

In all of the cases that you cited, the courts did not enforce orders. The executives enforced the orders and the legislatures went along with it. In other words, the elected individuals decided it was in their best interests to do what the courts requested, despite political fallout from their constituents for their actions.

Again, you did not give a single example of an order issued by the court which directed a government official to do anything. You are mistaking choice for control. Unlike the courts, the President and his/her executive branch really does get powers to control execution of orders.

I don't begrudge you your fantasy of judicial tyranny. You obviosly want to change the political make-up of the court system to people who share your views. And I, like most Americans, should look skeptically at your naked attempt to shift power. Especially when it is rooted in this fake term limit proposal which smells of the fake term limit proposal for legislators in the 1990s.

LTEC said...

Anonymous says, "... the courts did not enforce orders. The executives enforced the orders ..."

Not really. Only armed policemen enforce orders. Presumably courts and executives merely issue suggestions.

Dan Simon said...

LTEC has it right--in the U.S., government employees consider themselves duty-bound to carry out court orders as well as--indeed, above--executive orders. Perhaps they shouldn't treat court orders with such deference, but they do--and it doesn't sound as though you're terribly unhappy with that state of affairs. Hence your protestations of the powerlessness of the judiciary are somewhat disingenuous.

As for my desire "to change the political make-up of the court system to people who share your views", you should read this old posting of mine before tossing around rash accusations. As the record shows, I have been in favor of curtailing judicial power for a very long time--irrespective of the court's current or future political views.

I guess it's tough for most Americans to imagine anyone having enough political scruples not to want to rig the US Supreme Court to impose his or her own political preferences by judicial fiat. But I assure you--people like us do exist.