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Bench Memos

NRO’s home for judicial news and analysis.

Our Omnipotent Moral Busybodies



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Today’s Washington Post reports on a letter from a number of law professors and others (led by Duke’s Paul Carrington and Cornell’s Roger Cramton) to political leaders in Washington, proposing various changes in the operations of the Supreme Court.  I had heard of this effort recently but had not yet seen the specifics of the proposals–which can be seen here.  Taking them in reverse order, the proposals would 4) create a “certiorari division” of federal judges and Supreme Court justices of “senior” status to decide what cases the Supreme Court shall hear, removing this power from the active justices themselves; 3) limit the term of the chief justice to seven years, though termination of service as chief would not mean departure from the Court; 2) create a mechanism for nudging justices off the bench when they are unable to perform their duties adequately; and 1) provide for automatic addition of a new justice to the Court on a biennial basis at the beginning of each new Congress, with justices being accorded senior status after 18 years and the most junior nine justices constituting the active bench for hearing cases.

See why I left the first for last?  These are all interesting ideas worth discussing, but this one, by effectively curtailing the life terms of Supreme Court justices without amending the Constitution–for what else to call such a vitiation of the senior justices’ decision-making authority?–is both the most creative and the most revolutionary.

It may be a very good thing to do.  I have long thought that the tenure “during good Behaviour” of Article III has not turned out to be as wonderful a thing as the framers thought and hoped it would be.

The Carrington-Cramton proposal probably stands no real chance of making headway in Washington.  That would be too bad.  But one thing that might hold it back is the employment of bad arguments in its favor.  Here’s a howler, given as the first reason for the first proposal: “as Justices retain power for extended lengths of time, appointments to the Court are made so infrequently as to diminish the likelihood that the Court’s many important policy decisions will reflect the moral and political values of the contemporary citizens they govern.”

But I don’t want, nor should anyone want, Supreme Court justices who pay the least attention to the “moral and political values of the contemporary citizens they govern.”  What I want is justices who pay attention to the law of the Constitution, its timeless and unchanging principles, and the proper limitations on their own power to “say what the law is.”  The whole trouble with life tenure is the development on the part of too many of the justices, over time, of the arrogant certainty that they know what is good for the “citizens they govern” (and don’t get me started on what’s wrong with that phrase all by itself–ditto for the reference to the Court’s “policy decisions”) and that they can “adapt” the Constitution to the “moral and political values” that will bring about such good.

Just yesterday I came across a few lines from C.S. Lewis that apply here (as also elsewhere): “It may be better to live under robber barons than under omnipotent moral busybodies.  The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

Long service on the Supreme Court has, in a great many cases, encouraged justices to become just such “omnipotent moral busybodies.”  Some of them arrive already fully formed in that mold, of course.  But that’s all the more reason to rotate them out of active service as soon as may be.  Regularized biennial appointments of new justices would also give us regular occasions to discuss, as a nation, just what it is we want our justices to do and to be.  And the discussions might be calmer for being more regular and less high-stakes, when we know that in two years we’ll renew the conversation once again.




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