The Political Spectrum

It has been a relatively slow news day, especially in the legal world, until I ran across this article on law.com. (Kudos to Southern Appeal blogger William for posting about this first). In a nutshell the article describes a plan put forth by various law professors and academics that would legislatively limit the terms of Supreme Court Justices to approximately 18 years. The Article describes the plan this way:

the professors think that through legislation, they can rejigger the job
description of Supreme Court justices so they could retain life tenure -- but
serve on other courts in some kind of senior status after they have served on
the Supreme Court for approximately 18 years. Under their plan when it is fully
functioning, presidents would appoint one new justice in each two-year term of
Congress, guaranteeing that each president would get to name at least two
justices. The arrival of each new justice would bump the most senior sitting
justice into senior status, with circuit duties and other functions -- including
occasional tie-breaking service on the Supreme Court itself. Since the Court is
made up of nine justices, this procedure would mean that at the end of roughly
18 years, the first justice appointed under the new law would be rotated off the
Court into senior status by the arrival of a new justice. From then on, justices
would rotate off in the same way, giving each approximately 18 years on the
Supreme Court."Eighteen years of judicial office on the Supreme Court is long
enough to guarantee judicial independence from the political branches," the two
professors say in their joint statement. "But it is short enough and certain
enough to serve other equally important policies."

Now I happen to disagree with this idea entirely, but I'm also not convinced that a "legislative" solution is possible. Article III, section 1 of the Constitution clearly provides for life tenure of judges including Supreme Court Justices by stating that "[t]he judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." It seems to me that what the professors are proposing would be that the Justices ,after their 18 years, not lose their offices, but rather be reassigned to either some sort of "senior" status, or given other roles within the judiciary at the same rate of pay. Creative argument, I'll grant that, but I'm not convinced that Congress has the power to do this. Clearly Congress can establish the number of Justices, dictate the beginning and duration of a Court term, provide the Court with discretion over its docket, and even can control the Court's jurisdiction (to a point, i.e., Congress can legislate with respect to appellate jurisdiction, but not original jurisdiction) as the Constitution is either silent as with term and number, or expressly grants them the power (Exceptions and Regulations Clause) to make certain changes. As to "life tenure," however, the Constitution appears very clear to me; thus Constitutional Amendment appears to be the only means by which this type of change can be affected. Policy wise I think that term limits will do irreparable harm to the independence of the judiciary and will only serve to further politicize the appointments process, which has been damaged and eroded already.

William over at Southern Appeal notes that the problem with the Court is not the length of service of the Justices, but rather that the Court purports to be the final arbiter of the meaning of the Constitution, when no such power is expressly granted to them. This is a well traveled argument, that honestly I don't have a compelling response to, other than who else is supposed to settle disputes between the other two branches of government? I do agree that the Executive and Legislative branches are constitutionally permitted, and should even be encouraged, to develop their own interpretations as to what the Constitution means and what power it grants, but who decides when the Executive abuses its power (detainment of US Citizens in the war on terror), or when Congress exceeds the Commerce Clause? The "people" may be one answer, but I don't think that is what the framers intended. The Court makes more sense structurally, and in fact is the most efficient and effective way of meditating disputes between the other "co-equal" branches. I'll be interested to get my fellow co-bloggers take on this unique proposal.