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03/12/2005

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Daniel Chapman

That seemed... unhinged... Did I break some sort of taboo here? As I see it, Dred Scott *was* correctly decided according to the law at the time. If that's wrong in some way, please tell me why instead of slapping me with a PC stigma, ok?

N.E.Hatfield

Dan, Actually, Justice Taney's opinion was based on law that was severely out of step with the temper of the times. Unless of course you lived south of the Mason-Dixon Line and a were slave holder. To put an Abolitionist spin on it; it was a gem of political, economic, legal, judicial double-think and double-speak. As a ruling, it lasted less than eight years and was set aside as null and void by the Emancipation Proclamation and buried deep in the ashes of the Civil War. And as they say, that's History.

Hope this helps.

Palooka

David,

You again misrepresent my posts, and again reitterate your own views, which I do not doubt you genuinely possess, though I think they are deeply flawed. I have critiqued your view that modern jurisprudence, which is oftern ungrounded to constitutional or historic principles, is "good" because it is, essentially, "good." It is a results-based approach, which I do not wholeheartedly disavow (no Court should be totally ignorant of the results of its opinions), yet it is also the source of the decisions that everybody today recognizes as poor decisions--Lochner, Dred Scott, Plessy. Plessy only half-heartedly applied the spirit of the Equal Protection Clause because they thought it was the "right" solution. The Lochner Court really believed in "economic liberty," even when it was extra-constitutional. And the Taney Court really did believe blacks were inferior to whites, that they shouldn't be citizens, and that Congress shouldn't have the power to regulate slavery in the territories, even though the Constitution did not speak to those issues. They all believed they were doing the "right" thing, instead of endeavoring to discover what the Constitution commanded them to do. That is why I think your simplistic "modern jurisprudence is good because it is good" argument to be very dangerous and exceedingly fickle.

I don't want the Supreme Court outlawing abortion anymore than I want it to create a right to it. I want the Court to respect its important role as arbiter--not creator--of the law. I understand your views, the least you could do is try to understand mine.

As far as your continued misrepresentation of my views, I leave the record to speak for itself. It is also funny that you think Posner would be "shocked" by views expressed on his forum, though perhaps he is. He is quite the shocker himself, from his comments on Korematsu, to his oft-cited "baby market" musing in Sex and Reason. I have to confess, though, at feeling Posner is a bit more constrained here on his blog than in his many books. His tirade against the the leftist academe is a notable exception, however.

Well, enough of the tired and eternal debate between liberal and conservative jurisprudence. This thread has heard enough from me. You get the last word, if you want it.

TheWinfieldEffect

"The executive branch has term limits, why shouldn't the Supreme Court?"

Because, unlike the nationally-elected President, the Supreme Court is not a majoritarian political body that is supposed to waver with transient public opinion. It is an independent body that interprets the fundamental law, which often requires spelling out the scope of fundamental rights. Doing so may abrogate the power of transient majorities whose interests are represented by the current memers of the Congress or the current President, all of whom were elected by the majority. The court cannot be counter-majoritarian precisely when it is supposed to -- in protecting our fundamental rights -- if its members are partisan hacks selected by the transient majority to do a temporary hack-job on constitutional precedent.

Even if a revolving door Supreme Court is not filled with partisan hacks, such a regime disrupts the finality of the Court's decisions. Part of the institutional role of the Supreme Court is that its decisions, save where mistaken, are final. Term-limits only increase the incidence of mistakes.

Why? Because what actually fills the actual docket of the Supreme Court is all sorts of obscure cases dealing with bankruptcy, federal tax provisions, and odd economic regulation that most people simply don't care about, but upon which highly interested and adverse parties need a final decision. Judges get better with obscure cases like these when they have the opportunity to adjudicate many of them over time. (An experienced judge who has handled a million cases dealing with casket-sellers in Oklahoma will, generally, handle it better than one who has just arrived on the court.) Term-limits would maximize exposing parties to relatively inexperienced jurists, rather than minimize it.

Moreover, if the problem is that the Supreme Court is taking cases whose content are politically contentious, then a jurisdiction-stripping measure by Congress can easily narrow the Court's appellate jurisdiction, removing those cases from the Court's docket. Term-limits are wholly unnecessary.

And if we care that judges are secretly deciding cases on purely partisan rationales, and we disapprove of this behavior, the way to deal with the problem is not to exacerbate it by allowing for more political gamesmanship in the appointment of judges to the highest court in the land. The way to get members on the court to produce better decisions is to limit access to the court to a select and elite few who are allowed to remain there for life, so that if they make an error, they may recognize it and correct their future behavior, rather than boot them off the court and give their slot to another unreflective partisan hack who will exploit their folly, compound their error, and produce legal interpretation that is neither legal nor interpretation, but merely whatever the Cato Institute or MoveOn.org opines on the matter.

In other words, Palooka, it wouldn't make the abortion issue less contentious if the Court became more openly "political". It would make it worse. I would also note that according to the Coase Theorem, the Supreme Court stepping in makes sense. Pro-abortion people and anti-abortion people in general cannot bargain, and where they can the transaction costs are prohibitive. Because bargaining cannot take place, and it does not matter how the right is distributed by a third party, because the same equilibrium will be worked out either way, it makes sense for the Court to decide either in favor of pro-abortion or anti-abortion. Because the Court has a bias in favor of individual liberty over state control over person decisions -- in other words, because the Bill of Rights is more libertarian than authoritarian, it sided with pro-abortion. You may not like Roe v. wade it for perfectly justifiable reasons, but inefficiency cannot be among them.

John Smith

"John Smith,

Their constitutional role is not to just exercise their "judgment" on whatever comes before them."

You are a crazy person, Palooka. I meant judgment much as Alexander Hamilton meant judgment when he wrote the word judgment in Federalist Paper No. 78. He also contrasts judgment to will. Judges exercise judgment, the political branches assert the will of the people. Sometimes the two conflict, say, when the recently-elected neo-Nazi government decides to quarter troops in your home because you happen to be a Jew and the Court adjudges that to have violated the Third Amendment.

Judges are ALWAYS supposed to exercise JUDGMENT and never supposed to exercise WILL. That is precisely why they should NOT exceed their discretion and violate their constitutional authority by imposing their own policy preferences on the rest of us. Did I say "I think judges should exceed their discretion and violate their constitutional authority"? No! had you ***understood*** my argument you would have known I am someone who thinks SEPARATION OF POWERS is important. Someone who thinks SEPARATION OF POWERS is important and who raises Art III, sec. 2 in his argument that the judiciary is NOT a political branch like Congress or the Executive is NOT someone who favors letting judges run amok.

APPARENTLY YOU CANNOT READ, PALOOKA, AND DO NOT KNOW WHAT THE &%$@ YOU ARE TALKING ABOUT.

Alexander Hamilton

From Federalist No. 78:

"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary . . . may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

...

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

Strict Contructionist

"Instead of term limits, Supreme court judgeships should be chosen only from existing federal judges, should stand for a term of say 10 to 20 years (there is room to argue the specific number, I would prefer a number closer to 10 personally.) and must then stand for re-confirmation by the Senate, but with a twist. It would take a supermajority of the Senate to oust him or her."

We have this already. It is called the impeachment process.

Palooka

John,

It was, perhaps, a bad choice of words (but reading the rest of what I wrote makes what I meant quite clear). It is of course right to exercise their "judgment" on what a statute or constitutional text means. I inferred you meant it in a much grander sense, and I think the context of your comment affirms that reading. Coming absolutely unhinged over someone (possibly) misinterpreting your remarks is more than a little bizarre.

It seems your argument is detached from reality. The Court has never been totally insulated from political pressure, and today politics and policy (and not simply doing the lawyerly job of interpreting the law) dominates the Court and its opinions. If you are worried about the Court turning into a political branch, then you are a little late. The question is not how to prevent that scenario, the question is how to retard or reverse the current situation. Term limits are one possibility. Maybe term limits are not the answer. It is very possible it would only accentuate the negatives I am so critical of. It is possible, as Justice Scalia contends, that majorities will wish to nominate judges that merely agree with them, and increasing the frequency of appointments would only worsen the situation. I am biased, but I think the American people are ready for judges to resume the the role of interpreting, not creating, law. After all, it is the people who lose the most when they are unconstitutionally disenfranchised from an ever-increasing number of issues. Because I think, given the opportunity, the people will choose a return to constitutional government, I believe term limits are one step which would allow the people to remove judges which so obviously neglect their constitutional responsibilities. Maybe I am wrong. I am not adamant about term limits, it is just one possibility being discussed.

John Smith

"The Lochner Court really believed in "economic liberty," even when it was extra-constitutional. And the Taney Court really did believe blacks were inferior to whites, that they shouldn't be citizens, and that Congress shouldn't have the power to regulate slavery in the territories, even though the Constitution did not speak to those issues. They all believed they were doing the "right" thing, instead of endeavoring to discover what the Constitution commanded them to do."

The Lochner Court construed the Contracts Clause of the Federal Constitution. It did so more broadly than we do now, by assuming that it applied to all contracts, not merely contracts one has with the state, and by assuming that it had retroactive application to pre-existing contracts when a new law was passed. The Lochner Court did so to protect workers' right to contract, because a rise in the minimum wage often results in many workers being too costly for employment. This was not only true in the 30s. Ronald Reagan attempted to court urban blacks in the 80s by arguing that raising the minimum wage lowered their employment rates while raising the employment rates of illegal immigrants. Where the Lochner Court erred was not lacking a constitutional grant of authority -- it had the Contracts Clause -- but by reading a particular viewpoint about how the economy should be structured into the Constitution. As Justice Harlan's dissent says, "The 14th Amendment of the Constitution does not embody Herbert Spencer's Social Statics."

Dred Scott is similar. The Fugitive Slave Clause is clearly in the Constitution. The mode of legal analysis was original understanding. The problem was not in lacking a constitutional grant of authority, nor was it in reading into the Constitution a view of the (in)humanity of blacks; the problem was that it was poor originalism. As the dissents pointed out, the majority opinion ignored the historical fact that blacks were free and citizens in at least 5 States: in other words, there was no reason to presume that blacks were property and not persons under the Constitution. An originalist interpretation of the word "person" in the Constitution would include freed blacks. Taney did not read IN a viewpoint, he simply ignored facts.

Plessy, simply put, divided social equality from political equality, and held that the case before it dealt with social equality, which was outside of the Court's constitutional grant under the 14th Amendment, which dealt only with political equality. Unlike Lochner, which read in a particular economic philosophy into the Constitution, or Dred Scott, which was utterly incompetent in its originalism, Plessy made neither of these errors. Plessy is unlike both Lochner and Dred Scott. The Court there endeavored to find out what the Constitution commanded them to do, without being incompetent or imposing its own personal preferences on the nation or taking on extra-judicial powers. Yet it decided immorally.

The problem with your position, Palooka, as I think those who have implied you are racist are trying to illustrate to you, is that even if your jurispurdential principles classify Lochner and Dred Scott as wrongly decided cases, your principles must classify Plessy as rightly decided. Unless, that is, you believe Plessy was wrongly decided because it was immoral. If so, then you have just contradicted yourself, because ANY grave immorality would likewise be curable by the Court. Thus, by a rational reconstruction of your own argument, the Supreme Court's appropriate institutional role is that of an American Politburo.

John Smith

[[[It is of course right to exercise their "judgment" on what a statute or constitutional text means. I inferred you meant it in a much grander sense, and I think the context of your comment affirms that reading.]]]

No, it does not. I make this clear:

"Judges are ALWAYS supposed to exercise JUDGMENT and never supposed to exercise WILL. That is precisely why they should NOT exceed their discretion and violate their constitutional authority by imposing their own policy preferences on the rest of us. Did I say 'I think judges should exceed their discretion and violate their constitutional authority'? No!"

[[[It seems your argument is detached from reality. The Court has never been totally insulated from political pressure, and today politics and policy (and not simply doing the lawyerly job of interpreting the law) dominates the Court and its opinions. If you are worried about the Court turning into a political branch, then you are a little late.]]]

This argument is fallacious.
1. I did not say the court was totaly insulated from politcs or having political viewpoints, but from short-term gamesmanship by the political branches. I quote:

"I'm sorry, but this discussion seems quite silly to me. Art. III, sec. 2 gave judges life tenure and immunity from salary diminition so thay they would be insulated from the political branches (Congress and the President), not from having political viewpoints (or judgment)."

2. It also equivocates on what "political" means.
a. considering the consequences of decisions and thinking long-term, so setting policy in making judgments
b. acting as an agent of the will of the people by effectuating an ideology, like an elected partisan

How do we know a and b are envisioned different in a proper interpretation of our Constitution? Because the Founding Fathers thought so, and it was original understanding:

"The judiciary . . . may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

[[[The question is not how to prevent that scenario, the question is how to retard or reverse the current situation. Term limits are one possibility. Maybe term limits are not the answer.]]]

Art. II, sec 2 was written to prevent the scenario, and watering it down won't help. Term-limits water it down. Why? Let's look to original understanding again:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

Term-limits are not "complete independence" and they are barely independence at all. The point is that term-limits would make us worse off, not better off. After all, the discussion is entitled "YES TO TERM LIMITS FOR SUPREME COURT JUSTICES." How to prevent politicization on the court IN GENERAL is technically irrelevant to the debate.

Lastly, if you support a limited government and individual liberty, then watering down judicial independence by imposing term-limits is inconsistent and contradictory. For you to propose that we should have limited government (an independent judiciary) and term-limits (not an independent judiciary) is ABSURD.

You, sir, are divorced from reality, because you cannot differentiate between sound argument and absurdity.

Daniel Chapman

Forget judicial term limits. Personal logins to the forum and a limit to the number of posts you can make... that's what we need!

One post a day maybe... It's getting hard to read these when they turn into "You misread my post... I said X" "You misread MY post... I said Y" and so on...

logicnazi

I am amazed at the total lack of compelling arguments here for judicial term limits. Those who oppose term limits have given very real worries about the harms of shortening judicial terms, in particular the concern that the shorter the term the less stable the court, the more political pressure which will be brought to bear on the justices and the concern that they will feel the need to curry favor on their way to another office. On the other hand the only argument I have really heard for term limits is this diatribe 'the supreme court is political therefore it should be more accountable to the people'

Look the question in front of us is simple, what makes the best form of government. Now our framers clearly thought that the best form of government limited direct participation by the voters and sought to provide a buffer between the public and the supreme court via life term limits. Now if you just want to insist that this is a fundamental moral wrong and the only right way to govern is by giving the people more power thats fine but it isn't an argument but a near religious belief.

I fail to see any argument that isn't just an emotional pull towards democracy for term limits. I especially don't see any argument which would establish term limits are good but wouldn't go all the way to direct election of judges (at least the above poster who wanted congress to be able to overtune judicial deciscions was consistant). In particular all the arguments I have heard about the justices being a third branch of government would seem to authorize the inference we should just elect the justices every 4 years. If you don't seek to go to this far extreme then you must accept the principle that sometimes democracy must be traded for stability or independence and the question is just where the correct balance rests. However, if this is the question we have yet to hear the slightest reason to believe the balance rests at 15 years rather than life.

Ultimately what many of the people in this discussion are missing is an important point from the comments to Posner's blog (not mine). With most of the issues the supreme court decides it isn't so important what they decide but rather that they decide and that this deciscion is consistant over time (without being dramatically unjust). When a case makes it to the supreme court it usually means there is a case or controversy that needs to be decided and it rests on the boundary of the constitiuon or the law. Ultimately it doesn't matter so much where this line is drawn but that it is drawn and respected. What term limits do is disrupt this long term certainty over time. Besides supreme court almost never decides in a manner which angers the vast majority of the public and thus it isn't really any less democratic than the senate or any other non-proportional representation.

Also no one responded to the valid questions about the Dred Scott case. In particular the passage in the constitution talking about how one state needs to respect the property of citizens from another state (or some such thing) and given that the constitution openly recognizes the existance of slavery (counting non-free men) one might reasonably think this deciscion was legally correct. However, I believe actually looking at the deciscion convinced me that it wasn't legally correct and I think the crux of the issue was whether the slave was still property in a free state but I can't remember the reason. In any case the point is that unless you are prepared to provide a detailed explanation of why Dred Scott was legally (as opposed to morally) inappropriate it doesn't make for a good example since it isn't clear on the face which way the court should have decided.

Jim Thune

"In particular the passage in the constitution talking about how one state needs to respect the property of citizens from another state (or some such thing) and given that the constitution openly recognizes the existance of slavery (counting non-free men) one might reasonably think this deciscion was legally correct. However, I believe actually looking at the deciscion convinced me that it wasn't legally correct and I think the crux of the issue was whether the slave was still property in a free state but I can't remember the reason. In any case the point is that unless you are prepared to provide a detailed explanation of why Dred Scott was legally (as opposed to morally) inappropriate it doesn't make for a good example since it isn't clear on the face which way the court should have decided."

Actually, someone did mention that. They mentioned the Fugitive Slave Clause and how Dred Scott was faulty originalism. Arguably, states had the right to determine the personhood of slaves for themselves, so property in one state could be a person in another.

Jim Thune

"In particular the passage in the constitution talking about how one state needs to respect the property of citizens from another state (or some such thing) and given that the constitution openly recognizes the existance of slavery (counting non-free men) one might reasonably think this deciscion was legally correct. However, I believe actually looking at the deciscion convinced me that it wasn't legally correct and I think the crux of the issue was whether the slave was still property in a free state but I can't remember the reason. In any case the point is that unless you are prepared to provide a detailed explanation of why Dred Scott was legally (as opposed to morally) inappropriate it doesn't make for a good example since it isn't clear on the face which way the court should have decided."

Actually, someone did mention that. They mentioned the Fugitive Slave Clause and how Dred Scott was faulty originalism. Arguably, states had the right to determine the personhood of slaves for themselves, so property in one state could be a person in another.

Palooka

"...Thus, by a rational reconstruction of your own argument, the Supreme Court's appropriate institutional role is that of an American Politburo."

I wonder if you really read what I wrote, honestly. Rather than waste time pointing out each flaw in your "reconstruction," and repeating what I have already said, please just scroll back up.

To your point about judicial term limits being an "absurd" argument, let me again reitterate what I said before. I do not know if it would improve the system of which I am currently so critical. It is possible it would not. But I do not think rule by the elites is necessarily preferable to rule by the majority. I strive for a return to constitutional governance. I believe the people desire that as well. It is possible, however, that the people will be short-sighted and only desire judges who agree with them on the specific policy issues (we see some of this even now). This is, of course, not a return to constitutional government, and could, perhaps, worsen an already bad situation. I am not sure, however, that increasing the democratic nature of the judiciary would be any worse than the exceedingly aristocratic institution it is today. If the the Court is bound to disregard the Constitution either way, which is more preferable? Maybe they are equally bad, maybe they are not. This is my last post to this thread (for real this time). You get the last word.

Palooka

Let me clarify one thing. I have been using "term limits" when I really mean "shorter terms."

While having terms (whether 10 or 15 years) as opposed to life-tenure would increase the accountability to the people, term limits (no more than X terms) would not do that (in fact, it would limit the democratic options). The arguments for both terms and term limits share some similarities and differences. The reason currently under discussion here in the comments is that the judiciary should be held more accountable to the democratic branches. This is true only for having terms, not limiting the number of terms. Limiting the number of terms does not increase the accountability, and it may even lessen it--a justice who can be reappointed would presumably be more controllable than a justice in his last term. Moreover, if the people are more than satisfied with a particular justice, they do not have the option of keeping him on the bench. There are arguments which are applicable to both the institution of terms and term limits. First, that no single individual should hold sway over the Court for 40 or 50 years. Term limits absolutely effect this and terms themselves makes removal optional if the people are dissatisfied. Second, that terms and term limits make it more likely that older, more experienced judges will be appointed because of the removal of the desire to appoint young justices. Both terms and term limits, at the same time, would decrease the number of elderly judges. These arguments seem aimed at increasing the quality of the court--through diversity of opinion and better appointments and earlier retirement--and not at increasing accountability to the people per se. So there are two main themes here--democratic acocuntability and the quality of the Court. Shorter terms accomplish both objectives, term limits only increases the quality of Court.

Paul N

What I find missing from Becker's arguments are real examples of how life tenure on the Supreme Court has hurt the U.S. in the past. I'm open to considering term limits, but to me, this is an issue where ideology alone doesn't cut the mustard, and we should err on the side of "if it's not broke, don't fix it".

John Smith

"So there are two main themes here--democratic acocuntability and the quality of the Court. Shorter terms accomplish both objectives, term limits only increases the quality of Court."

Judges are not supposed to be "democratically accountable". They are supposed to be independent, which is why they aren't elected to terms shorter than life and their salaries are immune from dimunition. The two are at odds, which is why your argument is absurd. Judges cannot be "democratically accountable" as you see it and independent at the same time if we are to have constitutional governance: because your view is, sigh, extra-constitutional. Your view is contrary to Art. III, sec. 2, separation of powers doctrine, and, as is plain to any literate person, the original understanding of "a limited Constitution" and "judicial independence" evident in Federalist Paper No. 75, which is quoted above. The "return to constitutional governance" which you call for is actually amending the Constitution, specifically Art. II, sec, 2. Changing the meaning of something is not a return to its original meaning. That you do not understand how absurd that is is quite sad.

"Rather than waste time pointing out each flaw in your "reconstruction," and repeating what I have already said, please just scroll back up."

Much of what you wrote above was flat-out wrong. For instance, you said that "Lochner and Dred Scott are extra-constitutional, and therefore have very little, if anything, to do with the Constitution." As I stated earlier, Lochner interpreted the Contracts Clause and the word liberty in the 14th Amendment, which are both in the Constitution, and Dred Scott interpreted the Fugitive Slave Clause and the Due Process Clause, both of which are in the Constitution. Those are not "extra" constitutional and did not have "little, if anything" to do with the Constitution. They had everything to do with the clauses of the Constitution they were interpreting and applying to the cases before the Court. While this is obvious to anyone with average intelligence, or the ability to read, you wondered: "What exactly do those decisions have to do with the Constitution?" Um, interpreting it?

Moreover, you yourself stated that "I believe Plessy was wrongly decided" and that it was defensible Constitutional interpretation.

The problem with this view is that:
1. Both Lochner and Dred Scott were plausible constructions of the Constitution, as I and others have pointed out.
2. As I alone pointed out, your analysis of both Lochner and Dredd Scott is superficial. Neither Lochner nor Dredd Scott were extra-constitutional, so they are not as easy to distinguish from Plessy as you would have it. I did grant you that both Lochner and Dredd Scott were wrong decided, however, for different reasons. Lochner read in a particular economic philosophy, as Justice Harlan pointed out. Dredd Scott's originalism was faulty, as the dissents there pointed out. In other words, the quality of judging bordered on incompetent. You do not believe that the quality of the judging in Plessy was incompetent. ("The Plessy decision was deciding whether the protection outlawed segregation. They concluded it did not aslong as the facilities were equal. Therefore they admitted the protection provided by the Equal Protection Clause touched the issue of segregation, and they concluded that the facilities must be equal."). Yet you believe that Plessy was wrongly decided.

So let's recap:
Lochner, Dredd Scott, Plessy are all immoral.
Lochner, Dredd Scott, Plessy are not extra-constitutional.
Lochner and Dredd Scott are incompetent.
Plessy is competent [the quality of judging].

It is easy enough to say that Lochner and Dredd Scott are wrongly decided because they are incompetent. But Plessy is competent. Thus, the only reason left for Plessy to be wrongly decided is immorality. And you said, "I believe Plessy was wrongly decided." There is no other reason you can possible have (unless you are irrational).

Thus,"by a rational reconstruction of your own argument, the Supreme Court's appropriate institutional role is that of an American Politburo." Because if the Court is wrongly deciding a case WHENEVER it competently judges within the law but produces an immoral outcome, the it is the proper role of the Court to determine what a moral outcome is, and render decisions on that basis. That is precisely the policy-making you don't want the Court to engage in; and yet it is precisely what the Court would have to engage in for your argument to make any goddamned sense.

John Smith

"First, that no single individual should hold sway over the Court for 40 or 50 years. Term limits absolutely effect this and terms themselves makes removal optional if the people are dissatisfied."

We already have the impeachment process for bad behavior. If the judge engages in good behavior,and you simply want him out because he's been there "too long", then that requires amending the Constitution. That is not a return to constitutional governance, that is redefining what constitutional governance means. It is absurd to say that changing the original meaning of something is returning to its original meaning.

Marion Beck

[[[Second, that terms and term limits make it more likely that older, more experienced judges will be appointed because of the removal of the desire to appoint young justices. Both terms and term limits, at the same time, would decrease the number of elderly judges.]]]


How this would remove the desire to appoint young justices is unclear. A 15 year term is one that can be taken advantage of in the here and now to reach short-term objectives. It doesn't matter how old the "partisan hack" is. In fact, the younger and less experienced the jurist, the more likely he is to be willing to wheel and deal to advance his career -- in other words, sell out our Constitution for his own personal gain -- so politicians would likely still pick younger Justices, because they'd be the easiest to corrupt.

Whether it would decrease the numbers of elderly judges is dubious also. Federal judges are a small and elite bunch, and there are no term limits on district courts or circuit courts, because all federal judges are Art. III judges -- which means the pool of potential judges to serve for 15 years on SCOTUS is a bunch of people who get to serve on the federal judiciary for life. Why would they necessarily be any younger simply because we changed the appointments process for SCOUTS judges? The pool of potential SCOTUS replacements would still grow old, and the rate of ascension to SCOTUS, with these 15 year terms, would be higher than the rate of replacement on the district and circuit courts, so the potential SCOTUS replacements would get older and older and older, until the only possible replacements for SCOTUS were elderly judges. And it wouldn't even take that long, just two or three terms.


[[[Let me clarify one thing. I have been using "term limits" when I really mean "shorter terms."]]

This is illogical. There is no difference. Currently judges have a term. It is a life term. Shortening the term from life to less than life would be imposing a "term limit". Thanks for the equivocation, you fallacious moron.

Marta Beck

"The reason currently under discussion here in the comments is that the judiciary should be held more accountable to the democratic branches."

This is an argument to amend the Constitution and rid it of Article III, section 2, getting rid of separation of powers by making the judiciary not-independent and a political branch just like the Executive and the Congress. It is -- at present -- unconstitutional. Worse, while Palooka pretends to be strictly construing the Constitution, he is blatantly talking about radically amending it and annihillating its original meaning:

[[[The term limit concept limits the judiciary's "independence" but why is this a bad thing? If the Court is going to act like a legislature, then shouldn't it be more like one?]]]

Apparently, Palooka believes that the Framers never could have envisioned SCOTUS acting the way it does now, displacing the will of the legislature. But that is not true. Alexander Hamilton comments on it in Federalist Paper No. 75:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

If Palooka disagrees with this, then he is not favor of a "limited Constitution". Which is quite absurd, given how he rants and raves about Court decisions that are "extra-Constitutional".

John Smith

[[[To your point about judicial term limits being an "absurd" argument, let me again reitterate what I said before.]]]

This is not what I said. You just conjured up a straw man. I said that your unknowing inconsistency was absurd. I quote:

"Lastly, if you support a limited government and individual liberty, then watering down judicial independence by imposing term-limits is inconsistent and contradictory. For you to propose that we should have limited government (an independent judiciary) and term-limits (not an independent judiciary) is ABSURD."

It is not absurd to believe we should have judicial term-limits. It is absurd to state that you believe in judicial independence and a limited Constitution and that judicial term-limits will instantiate those principles.

WaitingforGoogle

"I strive for a return to constitutional governance."

Yes, by amending the Constitution.

Palooka

"Lastly, if you support a limited government and individual liberty, then watering down judicial independence by imposing term-limits is inconsistent and contradictory. For you to propose that we should have limited government (an independent judiciary) and term-limits (not an independent judiciary) is ABSURD."

It is not absurd to believe we should have judicial term-limits. It is absurd to state that you believe in judicial independence and a limited Constitution and that judicial term-limits will instantiate those principles.

----

Again, you fail to read my posts. IF the people want competent jurists and if they wish their judges to follow the law, then, yes, it is absolutely possible for term limits to support those principles. Just because I want to increase accountability does not mean I do not favor "independence," it just means I want less of it. And only because I think they have failed to competently interpret the Constitution.

As far as your continued nonsense with Lochner, Scott, and Plessy--Lochner and Scott were extra-constitutional insofar as they were without constitutional basis. Of course the Court (then more than today) likes to pretend they're "interpreting" when they are really not. Even in Roe (which is about extra-constitutional as you can get) the Court said it was defining "penumbras" emanating from a litany of actual constitutional clauses. Plessy, as I said, was a half-measure, a show of what today is called "moderation." It was wrong, but it was only wrong because it didn't give full force to the Equal Protection Clause. But it did give it some force.

On the term limit response: I realize that the phrase "term limits" is used here to define the institution of shorter terms. That is not, in my experience, what the phrase means (usually means limiting the number of terms). It's perfectly valid to call them that, I was just separating the kind of "term limits" which are being discussed. Shorter terms and a limitation of the number of terms served (what I think of as "term limits"). I just wanted to separate them for some clarity, instead of lumping both together.

Anonymous

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