Putting a Limit on Justice

The right’s outrage over Obama’s comments on the Supreme Court are hypocritical. All Obama said was the truth: It would, indeed, be unprecedented for the Supreme Court to overturn Obamacare, signifying a new interpretation of the powers granted to Congress under current Commerce Clause precedent. The president in no way insinuated that he would ignore the ruling, a fact verified by Attorney General Eric Holder in response to an outlandish request by a Reagan appointee on the Fifth Circuit. It was, however, somewhat disheartening to see Obama questioning the court by terming them an “unelected group of people,” as that legitimizes language typically employed by conservatives anytime the courts read the Constitution as protecting some form of social equality.

The New Republic’s Timothy Noah sympathizes with Obama, and offers term limits as a simpler solution:

I’ve never liked the idea of term limits for members of Congress, because if a member outstays his or her welcome voters get the chance every two or six years to hire a replacement. But term limits for judges—not just Supreme Court justices—make a certain amount of sense when those judges are appointed. For all their clairvoyance, the Founders couldn’t possibly have anticipated the impact that longer life spans would have on lifetime judicial appointments. As Northwestern’s Steven Calabresi and James Lindgren have pointed out, between 1789 and 1970 the average tenure of a Supreme Court justice was about 15 years—and that timespan includes the 29-year service of Oliver Wendell Holmes, Jr., a Civil War veteran who didn’t vacate the bench until 1932, at age 90. Since 1970 the average tenure has expanded to about 26 years. By longevity if not by eminence, Holmses are a dime a dozen today. Until John Paul Stevens retired in 2010, fully one-third of the Supreme Court were appointees not merely of presidents who had since died, but of presidents who, before they died, lived longer than any others in history. (That would be Reagan and Ford, who departed this vale of tears at 93. The previous record-holder was John Adams, an 18th-century outlier who lived to 90.) Dead presidents shouldn’t have that much power.

I’m with Noah 100 percent. Rick Perry’s brief presidential run included a number of potentially disastrous policy prescriptions, but I was on the record as favoring his plan to impose limits on judicial terms. He proposed an idea that I’ve always dreamed of implementing in the unlikely scenario I am granted the ability to add any one amendment to the Constitution: capping judicial terms at 18 years, with a new Supreme Court justice leaving the bench every two years. This allows every president to nominate two new judges each term. It would be the ideal system, one in which judges remain independent of political pressures once they are on the bench, but making the courts more responsive to the outcomes of elections. Under the current system, it’s possible for one president to have an outsized impact on the courts if an unusual number of vacancies opens during their term, or if they happen to select judges with prolonged life spans. The current structure also perverts the selection process, pushing presidents toward selecting the youngest justice possible to get the maximum return.


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