A change whose time has come, or a recipe for disaster?

Change we can believe in?

I saw this article this morning in the Washington Post and thought that it would be a good topic of discussion at this site.  As many of you know, we have some of the finest legal minds out there as front pagers and contributors to this blog, so I’d certainly like to get their take on this initiative to reform the Supreme Court, the likes of which I haven’t seen in my lifetime.

If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines?

A group of prominent law professors and jurists thinks not, and the group says in a letter to congressional leaders that there is no reason Congress should consider the operation of the high court sacrosanct.

I know that not one of us here was pleased with the appointment of ideologues like Roberts or Alito to the bench, but do we really want to go tinkering around with one of the bedrock anchors of our Republic as envisioned by our founding fathers?  And contrary to what the article says, I think many people do consider the operation of the high court sacrosanct.  After all, where would this country be without Marbury v. Madison, Brown v. Board of Education, or Roe v. Wade?  All of these cases had a profound impact on this country, and many of us would argue that it is for the better.  Such groundbreaking shifts in our socio-political landscape could not possibly have happened through regular legislative channels in such a short amount of time.  Furthermore, they ensured that citizens of the Republic would not be subject to the whim of legislators whose vision tends to be shortsighted and always couched with the thought of the next upcoming election.  And probably most importantly they demonstrate that the Supreme Court is the last refuge of the minority when the majority decides to legislate discrimination against them.   Of course our founding fathers realized that when they constructed our brilliantly conceived government with a clear separation of powers between the Executive, Legislative, and Judicial.

Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, 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.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority…

I guess that one could argue the meaning of “hold their offices during good behavior”, but historically it is been taken to mean that Justices hold their position for life.   The principle behind that is to make sure that unlike the legislative and executive branches, the Justices can base their decisions entirely on the basis of the interpretation of the Constitution or legal precedent rather than worrying about what their constituents want at any given time.  It is an imperfect attempt to remove outside pressures on the Court.  But some legal scholars are pushing for a change to that.

“We do not suggest, and would oppose, any interference with the substance of the court’s work,” says the letter, which was organized by Duke University law professor Paul D. Carrington and signed by 33 others from different stations on the political spectrum..

Carrington said the four proposals in the letter — sent to the chairmen and ranking minority-party members of the congressional judiciary committees, Attorney General Eric H. Holder Jr., and Vice President Biden — are drawn from various studies, commissions and reform efforts that have foundered in the past.

For starters, the group proposes a form of term limits, moving justices to senior status after 18 years on the court. The proposal says that justices now linger so long that it diminishes the likelihood that the court’s decisions “will reflect the moral and political values of the contemporary citizens they govern.”

To get around the Constitution’s prescription that justices serve for life, the group would let justices stay on the court in a senior role — filling in on a case, perhaps, or dispatched to lower courts — or lure them into retirement with promises of hefty bonuses.

It would set up a regular rotation on the court by providing for the nomination of a new justice by the president with each new two-year term of Congress. If that results in more than the current nine justices, only the nine most junior would hear cases.

The new policy would not take effect until those already on the court are off, but the current tenure of the court suggests what a radical change that would be. Four of the court’s justices — John Paul Stevens, Antonin Scalia, Anthony M. Kennedy and David H. Souter — have already surpassed the 18-year mark, and Clarence Thomas gets there later this year. Ruth Bader Ginsburg and Stephen G. Breyer are not far behind.

Relatedly, the group calls for the justice who serves as chief to be limited to seven years in the job, because it has “extended into numerous other political, administrative and non-judicial roles calling for a measure of special accountability.”

The third proposal deals with the removal of justices in failing health “who are increasingly prone to remain in office and retain their political power even if no longer able to perform their office.”

And the proposal would deprive the justices of one of their greatest powers: deciding which cases they hear. Justices now comb through the thousands of petitions for certiorari they receive each year, and in recent years have declared a declining portion of them worthy of their time.

Being the cynic that I am, I always tend to question the motivation of people who make such sweeping calls for reform.  A quick check of Huffpoop’s Fundrace shows that Mr. Carrington donated this year exclusively to the Democratic Party.  I would guess that his proposals are a way of knocking off the prolonged conservative bent we undoubtedly will feel from the court given the fact that the Chief Justice is a young man who most likely will be on the court for decades.

It also appears to try to put the agenda of the court back into more liberal hands with the last proposal of stripping the court of which cases they hear.  They might, for example, make it so that the court can not revisit Roe v. Wade until a more “favorable” makeup is present.  While those ends are probably what many of us would like to see, we PUMAs learned firsthand this past year that despite what the Obamans believe, the end does NOT justify the means.  We understand that actions have consequences, and that to tamper with something as, well, sacrosanct, as the Supreme Court could have disastrous repercussions further down the road.  One of the outcomes of such tinkering, for example, would tend to make the Court more aligned with whatever party happens to control the Executive branch at the time.  That might be fine and dandy now, but not so much if we get someone like Mike Huckabee in the White House.

Probably the most disturbing change for me is the ability to remove justices who are in “failing health”.  Whoever gets to determine what that means is going to be in a pretty powerful, perhaps too powerful position.

Like I said, we have some outstanding legal scholars here, and my opinions are admittedly amateur at best. So what do you think guys?  Is this an idea whose time has come, or a recipe for disaster?