From the Leader-Telegram, Eau Claire. Feb. 5:
The independent nature of the U.S. Supreme Court often has bedeviled presidents and members of Congress who would prefer to have more control over the lower-profile but co-equal branch of government.
And for other Americans who disagree with major court rulings — abortion opponents with Roe v. Wade, for example, or campaign finance reform advocates with the 2010 Citizens United decision — the court seems to be remote and out of touch with the will of the public.
The fact politicians (and the voters who elect them) sometimes bristle at Supreme Court decisions is partly by constitutional design: The court is meant to exercise a check on the power of the executive and legislative branches. And yet judges have one advantage over presidents and lawmakers: They are appointed for life, and as long as they are still in relatively good health they can stay on the court indefinitely.
And as life expectancies increase, so do judicial tenures. Before 1970, the average Supreme Court term was 15 years; among those who have retired or died since then, however, the average term has been 26 years. This trend has been exacerbated in recent decades as presidents, seeking to cement their long-term influence on the nation, have appointed justices in their 40s and 50s instead of in their 60s and 70s.
The result, critics say, is a court full of justices unresponsive to the political, cultural and social changes going on outside their chambers. Justices appointed by Presidents George W. Bush or Barack Obama may still be on the bench in the 2050s when the United States will be a very different nation.
Among these critics is Texas Gov. Rick Perry, who during his recent ill-fated Republican presidential campaign labeled judges as “Grand Ayatollahs” whose whims dictate the lives the rest of us live.
Perry’s much-ridiculed gaffes and memory lapses left little space in the public mind for any of the policies he advocated. That’s a pity, because his platform touted a bipartisan plan that could make positive changes to the Supreme Court. The concept, originally touted by a pair of legal scholars (one a Democrat, one a Republican) in 2002, involves a constitutional amendment creating 18-year terms for justices. One term would expire every two years.
According to Perry’s campaign website, “Doing this would move the court closer to the people by ensuring that every president would have the opportunity to replace two justices per term, and that no court could stretch its ideology over multiple generations.”
In short, judges still would be independent, but they wouldn’t be fossilized.
The idea has been touted by voices ranging from the conservative Federalist Society to liberal New Yorker columnist Hendrik Hertzberg. Even though Perry’s candidacy fizzled, the discussion about judicial term limits shouldn’t.