What is the role of the Supreme Court? Here’s what Article III Section 2 of the Constitution says: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” A little confusing but what’s important is what is not there — nowhere does it say anything about the Supreme Court being the sole interpreter of “law” nor does it give the Court veto power over laws passed by Congress. The Founders specifically did not give the unelected judicial branch supremacy over the elected branches. But in 1803, in the case of Marbury v Madison, Chief Justice John Marshall secured to the Court the absolute right to declare acts of Congress unconstitutional thereby declaring itself the sole arbiter of constitutional law and the Court has guarded that assumed power for the past 200 years. In addition, the justices have served increasingly longer terms thereby giving the roulette wheel of presidential appointment a distinct political bent that may outlast the changing winds of national politics by decades. Again, it’s hard to reconcile this result with original intent. It’s time, therefore, to give the Supreme Court a closer look.

In his book Packing the Court, James MacGregor Burns makes an argument for aggressive judicial reform at the Court. In his view the claim to “judicial review” by the Court is itself unconstitutional and the only way to effectively reclaim the unrestrained right for Congress to establish law is for the President to declare that he will no longer abide by Supreme Court decisions that override laws approved by Congress and signed by the President. He would be willing to do so, however, if there was a constitutional amendment specifically giving to the Court that right which it had assumed for itself under Marbury. This puts the burden on supporters of the current system, giving the Court the absolute right of constitutional interpretation even over Congress, to show through a constitutional amendment that this is the will of the people. In all other respects the role of the Court would remain unchanged; but failure to pass the amendment would remove from the Court that legislative veto. An interesting idea, no? Of course there would be an enormous uproar if any president attempted such a feat and yet it’s not clear to me that such an idea is either wrong or unrealistic.

Presumably, one of the roles of the Court in applying its veto power over Congress is keeping in check the runaway legislative authority of the majority. The current Democratic majorities in Congress along with a Democratic president are perfect examples. And yet, the People voted overwhelmingly for this Congress and thereby gave the president the mandate he asked for to make substantive change. If the Court moved to block progressive legislation passed by Congress and signed by the president, in the name of tempering legislative excess, they would clearly be defying the will of the people their own for political purposes. And yet, though the argument makes considerable sense, I find myself hesitant to embrace it.

Burns strongest argument is the case of FDR. In the mid 1930s FDR’s attempts to introduce New Deal reforms overwhelmingly approved by Congress was dealt a rude setback by a conservative Supreme Court opposed to those changes. In case after case the Court ruled the new laws unconstitutional. In 1937 FDR proposed to “pack the court” by having Congress grant him the authority to name up to six new justices. The Constitution gives no mention to the number of justices on the Supreme Court and indeed the number has changed several times over the years. FDR mishandled the political aspects of the proposal but it had the intended effect – in subsequent decisions on New Deal programs the Supreme Court reversed earlier decisions thereby giving FDR a victory, and the need for packing the Court diminished and was eventually rejected. More recent examples are harder to find with Bush v Gore the notable exception.

The bulk of Burns’ book deals with the history of the Court and offers few examples where the Court has exercised judicial review to the detriment of the country. The other side of the argument, of course, is that by the time such a case comes along it will be too late to do anything about it. And of course one can easily argue that Bush v Gore is the case that proves the need for such reform; but the partisanship of that argument is too blatant even if the extra-constitutional arguments made by the Court majority are clear to legal scholars. At present I’m neither sold on nor opposed to Burns’ idea but I do find it extremely interesting.

On establishing limited terms for Supreme Court justices, however, I am fully convinced. Article III Section 1 says: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The 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.” The term “good behavior” has generally been interpreted to mean life tenure except in extreme circumstances. But the length of terms, the randomness of appointments, and other important factors I’ll discuss later, argue for the implementation of limits.

Since 1970 justices have served an average of 26 years compared to an average of 15 years in the first half of the 20th century and before. William Rehnquist served his last year as Chief Justice while terminally ill, breathing through a hole in his throat, “eating” through a tube, and missing months of the term before his death, but he refused to retire. Jimmy Carter made no appointments in his one term as president. William Howard Taft made six appointments during his one term before he was defeated resoundingly for reelection. His political view was firmly rejected at the polls but his judicial philosophy lived on for decades through his appointments. This randomness of appointments combined with the growing practices of, 1) justices timing resignations to when a president favorable to their judicial philosophy is in the White House, and 2) the appointment of very young justices who may serve for 30 years or more, often puts the Supreme Court in opposition to established political preferences. Clearly this is not necessarily a bad thing – we don’t want established constitutional law to change every time the political winds shift. But we don’t need justices who are out of touch either.

There are those who would argue that “original intent” should be the basis for all Supreme Court decisions so current politics are irrelevant; but that is folly and ignores political reality and judicial practice. The Constitution must be adapted to deal with issues never envisioned by the Founders. Justices stuck in the ivory tower of the Supreme Court for over twenty years are out of touch with social change (the justices needed outside consultants to explain the Internet when the first case came before them). Further, it is interesting to note that no other country has life tenure for its most senior justices and only one state, Rhode Island, has life tenure for judges.

How would the implementation of term limits (or required retirement age) work given the Constitutional provision for tenure during “good behavior?” The obvious solution is a constitutional amendment; but that’s just not going to happen. There’s another idea being floated however that I quite like. Here’s how Linda Greenhouse who won the Pulitzer Prize covering the Supreme Court for the NY Times expressed it:

“So I endorse a version of a proposal now in circulation that would make the change by legislation rather than amendment. It would do this by keeping life tenure as a technical matter – in other words, no member of the Supreme Court would ever be required to leave it simply because of age or length of tenure. Rather, there would be an appointment every two years – so that every President would have two appointments during a four-year term. The Court would, obviously, grow…But only the nine most recently appointed justices would constitute the active Supreme Court. The others would continue to serve, at full salary, as senior justices. They would fill in for justices who were recused from a particular case and serve during vacancies on the Court. They could even sit on federal appeals courts, as Sandra Day O’Connor is doing during her retirement, and as senior federal judges do all the time.”

The result of the proposal would be an 18 year term for each justice. Greenhouse writes that this proposal would not affect any incumbent justice so I take that to mean the current justices are “grandfathered in” to life tenure but as they are replaced the new justices would serve under this system. The solution is quite long term since Roberts and company may be around for the next 30 years but this strikes me as a logical step to keep the Court current, fresh, and fairly representative of the country.

Tags: Constitution Article III, FDR, James MacGregor Burns, Judicial review, Linda Greenhouse, Marbury v Madison, Supreme Court, Term limits

This entry was posted on Thursday, November 12th, 2009 at 6:30 am and is filed under News/Politics. You can follow any responses to this entry through the RSS 2.0 feed.