Why, if we accept the idea of the Supreme Court as a third branch of the national legislature, do we not simply elect Supreme Court Justices?

There's no reason to doubt Gary Becker's assertion that elected judges perform less well than appointed judges overall. But if we are looking for legislators instead of judges, why should this be an impediment to choosing the Supreme Court by nationwide popular vote?

It shouldn't. The impediment to electing Supreme Court Justices is rather that treating the Court as if it were a third branch of the legislature is a terrible idea. It's perfectly true that it is sometimes found expedient to allow the Court to resolve difficult political questions in the guise of interpreting the law. However worldly and cynical academics may be about this practice, however, accepting it as the norm is bound to be corrosive of public trust in government.

Arbitrary authority, if it is wisely exercised, can win popular acceptance for a time. But frankly there is little more reason to accept its exercise by the Supreme Court than by the Army, or any other executive branch agency. Surely the bitterness of large sections of the public over Roe v. Wade, and of others over Bush v. Gore, suggests the risks we run by so often relying on the judiciary to resolve public controversies. Americans are much less willing to accept decisions they don't like if they've been denied any voice in them.

I don't have a strong view about judicial term limits, though as suggested above I regard Presidential interest in youthful nominees to the Supreme Court as a function of how much the Court is expected to do rather than of lifetime tenure. I suppose an age limit for Supreme Court Justices -- say, of 75 unless waived in individual cases by Congress -- is no more than common sense.

While I don't think there should be term limits to Supreme Court Justices time in office I do think there should be a mandatory retirement age for them. I think somewhere between 70 to 75 years of age. That way there is no incentive to rule based on being re-appointed or on what job they will have afterwards. I also think that electing Supreme Court justices is a terrible idea. First Justices should be lawyers (Even given brilliant exceptions like Chief Justice Marshall). And partisan politics already plays too large a part of the opinions of the court having the court be overtly political would only make things worse. Perhaps a mix between the european system of promotions of career judges and the American system of appointments would work best. I guess there is no way to find out since it would pretty much require some sort of Constitutional ammendment to do things differently.

I agree that a term limit (perhaps 14 or 18 years) for Supreme Court Justices would be a good thing. It would eliminate the problem of Justices staying on the bench too long for reasons of politics, and it would remove the incentive for Presidents to appoint young and inexperienced lawyers to the Supreme Court.

Also, judicial elections are not really the answer, because that makes the politics of the Court even more front and center than it is now. For the same reason, I oppose a renewable 10-year term. The framers wanted the Justices to be able to make decisions without considering the political ramifications. If they have renewal as a background consideration, the Justices will not truly be independent.

When other point about age.

When the Constitution was ratified, what was the average life expectancy?

Sure, many elderly justices have occupied the bench over our history, but if the Framers would have realized it would eventually be the norm, rather than the exception, maybe they would have felt differently about life-long tenure.

The term limit concept limits the judiciary's "independence" but why is this a bad thing? The Framers never would have imagined what the "independence" would become--a supra-legislature making decisions on social and economic policy regularly. Moreover, the judiciary is not truly independent today. Judges can be impeached for moral or criminal wrongs or for incompetence. Are those bad exceptions because they reduce the "independence" of the judiciary? If the Court is going to act like a legislature, then shouldn't it be more like one?

"If they have renewal as a background consideration, the Justices will not truly be independent."

Exactly. The problem is they are "independent" in the truest sense of the word. They are not bound by the Constitution's text or it history. They are not bound by the letter or intent of statutes. They are not bound by what people think. They are not bound by what the legislature or the President thinks. . They are only bound by their own personal moral and political preferences. They know best, always. It has become all too obvious that is what the Supreme Court is in the business of doing--inserting their own conceptions of right and wrong, striking down bad policy, upholding good. They are independent, even from the law. They ARE the law in their minds. That is the problem. In expanding their great "independence" they have disenfranchised the American people on issues where the Constitution is silent. That is unacceptable. I accept some level of bias is inevitable. Often "interpreting" blends into making law. That is unavoidable. But what the Supreme Court has done these last 40 years goes well beyond that. If we are to preserve the democratic nature of American government, this trend must be repudiated and discarded.

So Palooka - should we go back to the days of Lochner, Plessy, and Dredd Scott?

I don't want to talk about the substance of the Supreme Court's decisions. The point is that the Framers wanted an independent judiciary that would not be bound by political pressure. Apparently, you disagree with that framework. You are free to advocate that Article III be revised to make the judiciary more "democratic." But the framers feared a tyranny of the majority, and I share that fear.

Lochner and Dred Scott are not activist decisions?? What the heck are you blathering about? Dred Scott was the FIRST case to use the term "substantive due process." Lochner carried on that "substantive due process" as "economic due process." Both are examples of the Court exercising their preferences over what the Constitution actually commands. Both cases are without constitutional merit. Plessy is more debatable, but that is not to say Brown, which overruled it, is without merit. Brown, though activist in the sense it drastically changed the status quo, was not addressing questions beyond the Constitution--like Roe v. Wade and a whole host of other decisions.

I don't disagree with the framework of an independent judiciary at all. But they are NOT supposed to be independent of the Constitution. They are bound by it, and if they would prefer to exercise their authority as if they were a legislature, then perhaps they should have more democratic roots, like a legislature. I do not think it is preferable, but what other choice are the people left when their power is unconstitutionally usurped by a self-appointed supra-legislature? My preference is that the idealogy of Dred Scott, Lochner, and Roe is once and for all discarded. If that does not come to pass, then the judiciary cannot be trusted with its traditional "independence."

Although I'm sure it's not a huge problem (yet), I wonder how much influence the current president has on any given justice's decision to retire. Is it beyond comprehension that a judge waits for a president who shares his ideology before retiring? If we do not find a solution to the current politicizing of Court appointments, I forsee a future when the judges themselves will begin to game the system by timing their retirements to maintain the ideological balance of the Court.

Thoughts? Am I too paranoid?

I'm skeptical of Becker's proposal, even though I think the current Court cannot resist the temptation to legislate from the bench, as witnessed by the latest striking down the death penalty for 16-18 year olds without a national consensus on the subject and selectively using international law as it fits their own beliefs.

Turning S. Ct. justiceships into 14 year terms or so would seem to make the Court a prominent and always-present feature of presidential politics. People around a candidate would know that the guy has, say, one appointment that is guaranteed to come up, and they would jockey for position and favor with him to get that one. The candidate would know it also, and the nomination would just be virtually a plank of the presidential election. For some reason, that strikes me as a little too obviously and openly electoral to preserve the character and independence of the branch. There seems to be a certain virtue to the mystery and randomness to the process.

Also, this Court is far less counter-majoritarian than, say, the last turn-of-the-century Court, which routinely struck down local ordinances based on an even-less justifiable economic due process doctrine than the current privacy right stuff, given the Bill of Rights.

Just something to consider.

Any proposal to rein in the federal judiciary will get my support. But regarding term limits: If you simply have an issue with doddering judges, this works. But it doesn't address the issue of judges taking unacceptable liberties with the Constitution. It might even make the problem worse, giving judges a deadline to make their mark.

Among the states, only Rhode Island grants judges lifetime tenure. A plurality of the others use retention elections. I've left a trackback to an example of its use. Many people are familiar with a more famous case, that of California Chief Justice Rose Bird. At any rate, this is the solution I advocate at my blog, Vote for Judges.

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). If the President cannot remove judges at will, or wait them out (say, not have the DOJ present a case because a Justice's term is about to expire), then no gamesmanship can occur at all. The Justice simply sit there once put on, and can develop their judicial viewpoint (or judgment) without having to deal with political gamesmanship at all. If Congress cannot lower their salaries, then the judges need not pay attention to the temporary passions and interests of those politicians currently in Congress and take the long-term view (exercise judgment). That the judges are there for years upon years upon years is great. That way they are wiser. They have seen more cases, read more amici, heard more oral arguments, written more opinions. They will be better at exercising judgment, which is their job. It don't understand why you would want to open up SCOTUS to judges making decisions that are political snapshots (will only last 10 years) or why you would want politicians thinking in the short-term when it comes to matters of constitutional adjudication ("If we can get this extremist in there for the next ten years, it will make building up the state party in Missisipi over the next ten years much easier.") The whole point is to remove judges from the short-term calculations of the President and Congress. We want them thinking long-term, and we want Justices insulated from this very debate and free to think long-term. Otherwise we would have a holy mess. Things would be even more political and the court would just be a rubber-stamp of current popular opinion. It's not supposed to be. Quite often, it pays to have a counter-majoritarian court.

John Smith,

Their constitutional role is not to just exercise their "judgment" on whatever comes before them. They are not supposed to be an American Pulitburo, though as you suggest they have assumed that role. Their constitutional role is to UPHOLD & DEFEND THE CONSTITUTION of the United States of American. Now, if you believed that they weren't performing their role very well, wouldn't you want to tinker with the system?

"If we do not find a solution to the current politicizing of Court appointments, I forsee a future when the judges themselves will begin to game the system by timing their retirements to maintain the ideological balance of the Court."

Isn't it clear that this is already happening? It would be nice to de-politicize the process, but I wonder how possible that is. It will happen only when the public demands it.

As to Palooka's comment that Plessy's merit is at least "debatable," I try not to respond to silliness. If the Civil War amendments did not ban segregation, what the heck did they do? If Palooka were a black man in Kansas in 1954, he would have longed for a Supreme Court that was willing to enforce the constitution over the will of the majority. Though if he were a white racist, he might have found the issue "debatable."

"As to Palooka's comment that Plessy's merit is at least "debatable," I try not to respond to silliness. If the Civil War amendments did not ban segregation, what the heck did they do? If Palooka were a black man in Kansas in 1954, he would have longed for a Supreme Court that was willing to enforce the constitution over the will of the majority. Though if he were a white racist, he might have found the issue "debatable."

Thanks for implying I am racist. I see you do not take issue with Dredd Scott and Lochner being "substantive due process" cases, therefore conceding their alignment with modern "privacy rights" jurisprudence.

You clearly did not read my post very carefully. Plessy was addressing a real constitutional question. You believe today that the Fourteenth Amendment was intended to outlaw segregation. I am not sure that was the "intent," but I think that in the inevitable result from applying the princple of equal protection. The Equal Protection Clause was clearly designed to protect blacks from the uneven application of the laws in the aftermath of the Civil War (though I am unsure of it was intended to outlaw segregation specifically). 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. They did not wholly ignore the Fourteenth Amendment, and they do not totally ignore the command for "equality." Did they take it as far as they could have? Of course not. This is what I mean when I say the "merit" is more debatable than Lochner or Dred Scott, which are essentially extra-constitutional in nautre. What exactly do those decisions have to do with the Constitution?

Interesting take on Plessy, Palooka. I think it's a valid hypothesis.

I have read enough about NC's post-Civil War era, including the text of the debates over the NC Constitution after the war, to conclude that the Republican sentiment which animated the postwar amendments and the Civil Rights Act truly desired equality before the law that would outlaw racial distinctions inherent in the solution that the Democrats later created, Jim Crow segregation. They were not just getting rid of slavery but keeping everything else, it looks like they wanted black equality. It's remarkable how idealistic and enlightened the Republicans in NC were when they were drawing up the new document.

Part of the point being, I think the lion's share of federal decisions on Fourteenth Amendment protections have been right on point, because those postwar laws were all very broadly conceived, a conception which is directly reflected in the broad and somewhat poetic texts.

What looks like judicial "activism" is "activist" in the 18th century approach to law, but certainly not in the later 19th century from which the key laws came in the arena of civil rights law.

The “independence” of the federal judiciary is philosophically desirable, even if it is perhaps abused. The arguments against term limits and judicial elections are compelling given the wisdom of the Founders. It must be remembered that the activism of the judiciary is not, as many claim, the result of some vast conspiracy. Judicial activism is the inescapable result of placing absolute political power in the hands of unelected political players. Judicial review accomplishes this empowerment, and it is judicial review that must be addressed. The problem with the Court in the modern era is its absolute sovereignty. We must have trained jurists to adjudicate disputes. We must have these professional jurists as free as we can make them of direct political pressure. We must have a distinct branch that is uninvolved in the legislative process to give perspective and guidance. But the Court can no longer be sovereign.

Amend the Constitution to make a fixed and narrow range of Supreme Court decisions subject to a Congressional supermajority override. To require consensus to alter fundamental rights is to return the Constitution to the people. There is no other meaningful alternative.

So my major confusion in this discussion is what harm are we trying to correct by implementing supreme court term limits? Since these limits would still be quite long they would still seem to have all the same effects (desierable and undesierable) of removing judges from the political process.

There are from what I can tell two seperate arguments that may be being advanced.

The first is simply that supreme court justices are staying on for too long. In other words when the constitution was written life appointments 'got it right' because life expectancy was lower but now that life expectancy is higher judges stay on the bench too long. If this is the argument being made I ask what is the evidence for it? Why and it what manner would we expect justices who served on the courts for shorter periods of time to be better?

One might think the problem is justices are too far behind the times and too conservative. Yet I think it would be fairly difficult to find widespread agreement that the supreme court is too conservative and institution and besides it would seem that the judiciary should be the most conservative branch of government.

Another potential problem is that justices living too long gives the president who appoints them too much power. However, in the long term (minus any collusion from judges which we shall discuss shortly) this all balances out. Longer judicial appointments mean a president should expect to make fewer appointments but each appointment will have a longer effect so the expected effect by each president should be the same. The primary effect it would appear is to make the law more stable by making sure fewer total appointments (i.e. changes in justice) are made. Since it would seem that stability is a virtue in the law this argument seems to come out in favor of as long as term limit as possible.

Ultimately the question is why should we believe 18 is the right number of years. Why would 10 or 30 not be better. If we don't have a better argument for 18 years than 'feels right to me' or even 'thats what the average term of a judge was at the framing' then I find it hard to feel compelled to change the constitution to try this experiment.

Perhaps then the real argument that was intended was that having some fixed term limits for judges (which usually expires before death) is a good idea. It is not that justices serve for too long it is that they serve for indeterminate times.

There is much to be said for this argument (though not here) in particular it stops the game of trying to name young justices. Though politics and the fear of a change of heart while on the bench prevents taking this too far. It also helps solve the problem of judges choosing to serve or resign depending on which president is in office. Since it seems the game of appointing younger justices seems to have about reached its limit and so long as this practice doesn't risk putting untested law students on the bench the length of service argument was dealt with above I will focus on this later argument.

While it is true that a fixed term would discourage politically motivated retierment by making this act more obvious and in greater conflict with the justices own interest it would not totally eliminate this problem. Presumably justices could still get sick or retire and there is no way to stop someone from being (subconciously or conciouslly) more willing to retire when they are confident of a suitable replacement. Perhaps this problem could be fixed by letting a president appoint a justice and a sequence of understudies in case the first should retire yet this has it owns problems (does each understudy need to be confirmed by the senate...would presidents appoint one person and get them to resign to move a less popular jurist into office?)

Moreover, despite their imperfect solution to the problem fixed terms bring problems of their own. By giving a fixed time for the appointment of a new justice they would draw the court appointments even more into political caimpaigns. (It is one thing to say you will deal with a possibility when it occurs and another to refuse to plan and comment for a certainty). This effect could get worse if appointments were allowed to 'line up' and while partial appointments to fill the remainder of terms could solve this problem it could introduce supreme court justices who only served for a couple years (are these dead end jobs or can they be appointed again? If so are there deciscions being reviewed? If they can't be appointed again it would seem like we would get less than the best jurists and likely would just get presidential stooges. If yes we get all the problems of politisizing the judiciary again).

Moreover, there is also the worry that justices who knew there time was coming would feel compelled to leave their mark. They might try and push opinions into a more sweeping form than relevant for the case because they know they won't be around. Which cases gain certiorari might also suffer.

Ultimately the vague concern about letting people picked so long ago decide current issues and the suggestion that these justices might be too old simply aren't enough to overcome these other worrys. Certainly not enough for me to be convinced we need to fix a working system with a constitutional ammendment.

I agree with Niemann that the only solution is to give congress a method to overturn a court decision. Our constitution never intended to give one branch of the government unchecked power to create law and policy. The idea of "final, therefore infallible" has to go.

I understand that judicial review is meant to protect the constitution from an overreaching congress, but I guess the problem boils down to "who do you trust?" If someone has to have the final word on an issue, I'd rather it's 500 elected legislators than 9 appointed judges.

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Daniel,

The Congress may overturn any ruling on the Constitution prospectively *whenever* it likes. It can do so by limiting the jurisdiction of the federal courts over a given area of law. The Supreme Court is granted original jurisdiction over a few areas in the Constitution, which of course cannot be taken away by statute. They are suits between the states, for ex.

However, the Congress can and has taken away the power of the court to review certain types of cases through its statutory appellate jurisdiction. Ex parte McCardle, 73 U.S 318 (1868), if I recall, ratified the Congress’s removal from federal jurisdiction the writ of habeas corpus, to prevent the Court from declaring the Reconstruction Act unconstitutional. See 53 Ala. L. Rev. 555. The Congress could today pass a law that, for example, the federal courts have no jurisdiction to hear cases involving the constitutionality of abortion, then pass a law that outlaws abortion, and the federal courts would be powerless to strike the law.

The Congress has only restricted jurisdiction twice in history: in the Reconstruction (to prevent the federal courts from messing with the military’s fairly random sense of justice during the post-war military rule period), and in the 1990s, when it restricted state habeas petitioners to two appeals, mainly for the convenience and sanity of federal district courts swamped with frivolous habeas petitions.

The fact that it has essentially not touched the general jurisdiction of the federal courts except that one time during the Reconstruction shows the implicit respect and admiration that the Court quietly commands among a consistent majority of people on the key issues.

People in Congress like to blow smoke about "counter-majoritarian" courts, but bills to limit jurisdiction are routinely submitted but never passed in even one house.

I'm not a lawyer, nor a politician. I consider myself a strict constructionist in my viewpoint. That said, I personally feel the framers screwed up with the concept of life terms for Federal Judgeships. I've read everyones comments here and some good points have been made on both sides of the issue. I'd like to propose a variation on the idea of term limits for your comment. Of course this would require a constitutional ammendment, but after all, isn't that what we are really contemplating here? Surely this is a far more important issue than whether a guy can marry another guy or whether it should be illegal to burn a flag.

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. Otherwise the judge continues to serve until he or she decides to retire or dies. This way if a Supreme Court Justice goes too far afield, he or she has only a limited time to do damage before the townspeople pick up the torches and pitchforks and head for the castle en masse. Federal Judgeships should be reviewed by the Supreme Court on the basis of workload, number of rulings overturned, ethics, etc. on a similar term. It should take a supermajority of supreme court justices to unseat a federal judge. In this manner, some check would be established upon the Judiciary where there was none before, while still allowing a measure of independence. Federal Judges would not find themselves in dead end jobs with no no ability of advancement. There would be a means to weed out those judges that find themselves unable to resist weilding too much power. And it would remove the temptation of those around a given presidential candidate to curry favor in order to gain a Supreme Court appointment.

Anyone who thinks the Plessy decision is in the least defensible should read Justice Harlan's dissent. It's absurd to say that "separate but equal" truly meant equal. It was a system invented by white racists to separate themselves from non-whites. It was part of the compromise of 1877 that gave the Republicans the presidency but allowed the south to end reconstruction and begin Jim Crow. It was a devil's bargain, one that the nation lived to regret.

Dred Scott is objectionable not because it recognized a "substantive" right in the name of "due process," but because it ruled that one person was the property of another, by mandate of the constitution. Unfortunately, a civil war was required to set that right.

I mentioned Dred Scott initially, along with Plessy and Lochner, not to attack the concept of substantive due process. Rather, my point was that the Supreme Court's jurisprudence has evolved for the better over the last 150+ years. Now, the court protects the rights of citizens instead of protecting the rights of slaveholders, segregationists, and sweat shop owners.

Of course, none of this has anything to do with judicial term limits..

David, it is a shame you continue to misread my posts, whether it is intentional or not I am uncertain.

I said that Plessy was more constitutionally defensible than Dred Scott or Lochner. Plessy was, indeed, a compromise. Plessy didn't wholly ignore the Constitution's command for equality, but it also took that command less seriously than we, today, think is required by the intent and purpose of the Fourteenth Amendment. I was not "defending" Plessy, David, and you know this. If I were to analogize the modern equivalent of Plessy, it would be in the Court's willy-nilly application of equal protection jurisprudence to affirmative action (I am not implying they are equal moral wrongs, but the error of the Court is similar). As today's Court believes it is practicing "moderation," where it is in actuality refusing to apply its own principles uniformly, the Plessy Court felt, I am sure, it was applying a "moderated" version of what was the Fourteenth Amendment intended--which was, and still remains apparently, quite controversial. I believe Plessy was wrongly decided and I believe Grutter was wrongly decided (again I am not implying moral equivalence), but both try, albeit sloppily and unpersuasively, to apply the Constitution. Lochner and Dred Scott are extra-constitutional, and therefore have very little, if anything, to do with the Constitution. This is what I meant, again, by saying one was more defensible.

You responded with the tired "Dred Scott, Plessy, Lochner" trio in response to my railing against judicial activism. I pointed out, and you have yet to deny, that these are, essentially, the rightful parentage of "substantive due process," and therefore the source of the precious, and mysterious "privacy rights" you so apparently adore.

It is apparent you think it is OK to veer from the Constitution and into whatever seems morally "right" to the justices. But don't you see that is exactly what the Court DID DO in Lochner, Plessy, and Dred Scott!!! Why would you ever want the Court to exercise such authority when they have so abused that authority in the past! You may like Roe, Lawrence, Goodridge, and the recent Roper v. Simmons (I agree with some of them on policy), but who is to say there are not more Lochners, Plessys, and Dred Scotts in the future of your All Powerful Court. Is that all worth the risk because of the "good" the modern Court has done (all while undermining the democratic nature of American government)?

And, yes, this has everything to do with term limits. Many, many people are unhappy with the heavy-handed, even reckless and often illogical, approach of the Court this last 40 years. We are looking for ways to improve on that system. Term limits is one option before us.

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I havn't studied Dred Scott, but wasn't the law pretty straightforward in saying that some people WERE property before the 13th ammendment? You can object to the system, but I think you're pretty hard-pressed to object to a ruling that REFUSED to step outside the law for political reasons. Please correct me if I'm missing something...

Palooka - I haven't misread your posts. You have misread mine. Stop and think for a moment, and maybe you can learn something from someone else. You criticized the last 40 years of Supreme Court jurisprudence. My point was that the 100 preceding years were much worse, because the Court allowed itself to be used as a tool of oppression. I have no intention of engaging in a debate about "judicial activism," which is a catch phrase used by demagogues to criticize decisions they don't like. It is not "activism" for the Court to enforce the constitution. That is its role, as John Marshall made clear long ago. One can disagree with court decisions, but the assault on the judiciary over the last few decades, by those who disagree with its rulings regarding individual liberties, has been shameful.

I wonder if Judge Posner and Prof. Becker realized that they were creating a forum for people who place Plessy on par with Bakke and think that Dred Scott was a correct application of then-settled law. They would probably cringe at the thought that such people are their fans.

David, you are misreading what Palooka is saying, as he articulated above.

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?

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.

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.

"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,

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.

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."

"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.

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.

"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.

[[[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.

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...

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.

"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.

"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.

"...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.

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.

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".

"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.

"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.

[[[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.

"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".

[[[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.

"I strive for a return to constitutional governance."

Yes, by amending the Constitution.

"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.