A really, really stupid solution in search of a problem

With thanks to How Appealing, take a moment to read Jeff Jacoby’s piece entitled “Life tenure no longer serves Supreme Court.”  The author recycles the argument that Supreme Court Justices should be term-limited. This idea has been around (particularly in academic circles) for quite some time. It has been pushed hard by a variety of people especially including an aging but distinguished law professor by the name of Paul D. Carrington.

Although many others hold Carrington in very high regard, he is not my favorite.  I suppose this is because he once publicly threatened to file a judicial conduct complaint against me if I persisted in stating that his idea was stupid.

Anyway, the idea is really, really stupid. Most basically, the idea is dumb because (1) the Supreme Court, on balance, works, and has worked, about as well as can reasonably be expected and (2) there is not the slightest reason to think the proposal would make the Court work any better.  In short, we ought not term limit the Justices because of the obsessive compulsive desire of some elites to remake the world in their own very abstract image of what Nirvana would look like if only they could assume the mantle of the Founders.

RGK

4 responses

  1. Please, Judge, tell us what you really think. 😉

    Are Prof. Carrington’s thoughts on your judicial conduct available for review anywhere on the internets?

    It seems to me that the article is really about age-limits, not term-limits, for the SCOTUS. Shouldn’t efforts to bar the aged from serving in government be directed at the other two branches, where infirmity has clearly impacted the ability of elected officials to serve? See, e.g., Woodrow Wilson, Robert Byrd.

  2. If my memory serves me, I wrote an op-ed piece regarding Senator Ben Nelson and the judicial term limits proposal. Again, if memory serves, Professor Carrington responded with an op-ed piece that contained the threat. I think both pieces were published in the Omaha World Herald and the Lincoln Journal. I did a quick search and I can’t find them on-line. I suppose one could check the archives at the papers.

    Term-limits and age-limits are very similar but theoretically distinct as you suggest. The proponents of this proposal frequently intermix the two.

    Finally, the longest serving and especially revered Chief Justice, John Marshall, was born on September 24, 1755. At the time of his birth, his life expectancy was slightly less than 40 years. He lived just short of 80 years and died in office. He served on the Supreme Court for 34 years very nearly as long as a normal lifetime for those who participated in the Founding.

    Are we to suppose that Chief Justice Marshall was too old to serve as Chief Justice? Are we to suppose that America would have been better off had Marshall been term-limited (age-limited)? To ask these questions is to answer them.

    The age-limit/term-limit proposal for Justices is rubbish. All the best.

    RGK

  3. [T]he idea [of term/age limits for the Supremes] is really, really stupid.

    You understate the case, Sir. The idea is really, really, really stupid. There. If I haven’t been served with the relevant suit papers by Mr Carrington by COB Friday, all the world will know Carrington knows he has no case to make and is just blowing smoke. Or that I’m just a poor, dumb Texan layman and not worth the trouble.

    [T]he article is really about age-limits, not term-limits….

    This seems to me an artificial distinction. The Supremes serve a single term. Truncating that single term with an age limit is a term limit.

    Wrt Wilson, his…infirmity…had nothing to do with age. He had his famous stroke (albeit not his first) at the ripe old age of 63, and he didn’t die until 3 years after he left office. Further, he recovered from that stroke enough to reclaim his duties from his wife.

    Eric Hines

  4. Your point about Wilson is a good one. I had entirely forgotten about it. Thanks very much.

    All the best.

    RGK

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