The White House just recently announced an executive order by the president creating a “bipartisan” commission to look at the possibility of expanding the Supreme Court and setting term limits on justices.
The commission is supposed to spend 180 days “studying” these subjects.
If you recall, I wrote a blog post about whether or not “court-packing” was Constitutional. While the president cannot, on his own accord, pack the Court constitutionally. Congress can constitutionally change the structure and make up of the Supreme Court.
Court Expansion
Let’s first examine this idea of expanding the Court. An article in the New York Times says: “Progressives say that Republicans unfairly gained an advantage on the court by blocking Mr. Obama’s nomination of Judge Merrick B. Garland in 2016, and they see adding seats to the court, setting term limits or instituting other changes as a way to offset the power of any one president to influence its makeup.”
Now, I know that conservatives fear court-packing, or the idea of court-packing. However, conservatives likely wouldn’t have a problem with it, if someone were packing the Court with a bunch of conservative justices. The fear for anyone with a strong ideological conviction is that the Court will go the opposite direction. Of course, the longevity of a justice’s tenure in combination with the power the Court has, does present a frightening outcome should the Court heavily tilt one direction over the other.
Expanding the Court would mean adding more Justices, which could be both a good or a bad thing. Congress can, Constitutionally, expand the Court but should do so with sobriety and gravity.
Term-Limits
What about term limits? Can Congress set term-limits for justices and judges?
Not exactly. The Constitution does not explicitly forbid term-limits for judges or Justices, but it also does not condone it. It says, judges “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.”
Hamilton, in the Federalist papers, emphasized that this “holding office during good behavior” was intended to mean just that: judges and justices cannot be removed from office until or unless they are no longer acting with good behavior. What then does “good behavior” mean? That’s a whole other question entirely (this does not mean that a judge or justice cannot leave on their own violation, of course) and one that Hamilton only briefly touches upon.
The point is, if Congress wants to establish term limits for judges and justices, since the Constitution does not grant Congress the power to set term limits, Congress would likely have to do so through a constitutional amendment and a constitutional amendment does not come easy.
“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” – Alexander Hamilton, Federalist Paper No. 78
In other words, the judicial branch needed to be insulated from outside pressures, pressures from the citizenry or from the other branches. If judges know that they have a limit or that they can be removed for various reasons, aside from impeachment for bad behavior, they are going to be motivated to please those who can remove them or those who can re-appointment them (term limits).
Frankly, I don’t have as much concern with the idea of term limits for judges or justices as long as term limits are be established through the amendment process. Our Court is far too powerful and needs to be reigned in; therefore, I’m willing to entertain the idea of term limits. For now, however, an idea is all it should be.
The Conservative-Liberal Balance
Conservatives feel “safe” with a Court that has a conservative lean while liberals feel “safe” with a Court that has a liberal lean. However, what neither party really notices is that the Court’s primary lean is federal. In other words, the Court’s consistent lean, throughout the tenure of its existence, has been towards expanding the power of the federal government. This lean has produced the behemoth of a federal government that we have today and has also created a vast amount of “precedent” that supersedes the Constitution in reverence and respect by the Court.
The Court today is full of politicians, playing a game. The only lean they should have is towards the Constitution, but that lean has long been abandoned and the primary lean of the Court is government power.
Friends, I hate to tell you this, but it really doesn’t matter who’s on the Court now–the Court has long been corrupted by power and has long abandoned the Constitution. They continue to not only allow the other two branches to grow but are actively enabling their growth.
For those of you who are holding out hope that the Court will be the Constitution’s one saving grace, it’s time to move on from the Court. State and local government’s are your one last hope.
Conclusion
Ultimately, there’s little that can be done to make the Court worse than it already is. I suppose the Court could have overt anti-constitutionalists serving on the bench and that would be worse, but then again, having nine justices who are anti-constitutionalists while claiming to be constitutionalists is pretty bad.
It’s time to turn our worries and concerns away from the Court. Don’t fight for issues to make it to the Supreme Court. That’s about the worse thing that can happen today. Instead, fight to keep issues local, private and within in your state.
And always remember that the Court IS not your friend.
The Liberty Belle
For either party to look for any judge to side with them makes my brain hurt. As for the supreme court all they should be doing is upholding the constitution period!!!! Judge’s should never be judged by their political lean but only by their loyalty to the constitution period. God and the constitution should be their only influence to make a judgement not what personal agenda or political agenda they are into.
Your articles on SCOTUS have been very illuminating and thought-provoking for me. My education in history and government never really taught me how inconsistent is the modern power of the courts with the Constitution!