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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."

Daniel Chapman

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.

John Smith

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.

Daniel Chapman

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.



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.



Daniel Chapman

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.

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