Life tenure for out-of control federal judges, including members of the Supreme Court will never be abolished unless there is an overwhelming public demand.I was asked for my view regarding a proposal to provide term limits for federal judges, including members of the U.S. Supreme Court. This is my response:
Flagrant judicial abuse of power has prompted numerous proposed remedies repeated over the years (e.g., require a Supreme Court supermajority, such as 7-2, for any unconstitutionality ruling, which could then be overturned by a 2/3 majority of each house of Congress as is now done with presidential vetoes, strip federal courts of jurisdiction as explicitly provided for in the Constitution, etc.).
In my view, ending lifetime appointments would be best. Lawlessly and arrogantly usurping power, federal judges long ago forfeited any legitimate claim to life tenure. Their lack of integrity has conclusively vitiated the very basis used by the Founding Fathers to justify life tenure in the first place.
However, it is easy to propose remedies. For three reasons, they cannot now be adopted. First, as noted in Getting It Wrong, the Supreme Court is the last best hope of democracy’s losers. They are not going to give that up without a fight. Unpopular and harmful, even dangerous, radical extremist policies that cannot be adopted democratically are repeatedly rammed through by federal judges – usually by stealth and unnoticed like noiseless and invisible thieves and worms, to paraphrase Thomas Jefferson. Yes, there are widely reported fiats such as on abortion and, recently, gay marriage. But these are the exception; in any event, most “journalists” focus on whether they like the results rather than on whether such results follow the Constitution or are an abuse of judicial power.
Far more typical has been the gradual and, by now, almost total neutering of the death penalty.
Second, although often unable to impose unpopular policies legitimately, democracy’s losers are strong enough to preserve judicial subversion of representative government. The Constitution, requiring extraordinary majorities, makes it far easier to block than to adopt amendments (except, of course, when the Supreme Court itself easily usurps amending requirements with reckless abandon).
Third, although some polls indicate a decline in public approval, the Supreme Court still has considerable protection for one simple reason: THE MEDIA. The media conceals from the public what the Court really does. The unreported outrages are without limit.
I am convinced that the public would not stand for rampant judicial abuse if the public knew about and understood it. I do not write for experts. My goal has been to inform the lay public. Thus I strive to write in a way that can be easily understood. I avoid jargon and legalese. Unfortunately, with very little support from those on our side who are in the best position to publicize my work, I have achieved little.
The unpleasant truth is this. Reform is now impossible. Unless overwhelming public support can be generated, it will only be an academic exercise in futility to muse about specific proposals.
I will have much more to say about this in what likely will be my final article.