Bad news for the Justices (and the rest of us)

As I have written before, I don’t like the idea of “term limiting” the Justices. I have even provided a “top ten” list of the ways to address the polarization problem without term limits. Now, with a tip of the hat to Howard Bashman, I see that Norm Ornstein, writing in the Atlantic, has concluded that: “The best solution to the increasingly politicized and unseasoned Court is to limit justices to 18-year terms.” Mr. Ornstein’s opinions matter in Washington.

While it is cheeky almost beyond imagining, I remind the Chief Justice that he once told Jeffrey Rosen, writing in the Atlantic, about the importance of the Court speaking with one voice. Rosen provided this cutline in January of 2007: “In an exclusive interview, Chief Justice John Roberts says that if the Supreme Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas.

He added that:

In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

Roberts suggested that the temperament of a chief justice can be as important as judicial philosophy in determining his success or failure.  . . . .

I will be dead and buried before term limits, once imposed upon the Justices, “trickle down” to lowly Article III district judges, but it becomes inevitable once imposed at the top. Kopf’s cry to the Gods (and the Chief): Don’t make me roll over in my grave.


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.


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