Norm Ornstein has written a piece for the Atlantic calling for the introduction of term limits for U.S. Supreme Court justices. The impetus of the article is not a mystery: Supreme Court opinions have not been going the way Ornstein would like for some time and changing the Court through term limits would allow what he sees as a much-needed culling of “partisans” from the Court to occur. Ornstein’s piece manages to be wrong both logically and factually.
Ornstein’s logic is off — he suggests that Brown v. Board of Education would be decided differently by the Roberts court based on Chief Justice Roberts’ statement that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” and that this would leave “separate but equal” as the standard. But “separate but equal” was the government discriminating on race by forcing children to attend schools on the basis of skin color and not convenience, location, or the students’ desires. Instead, “separate but equal” would have probably stayed in place had the Court applied Ornstein’s preferred approach of extreme deference to elected officials and “trends in politics and society,” as integration was wildly unpopular in many parts of the country at the time.
Ornstein thinks that term limits would give politicians a better chance to end up on the bench and thus result in more justices who would be less divided and more “accurately reflect the changes and judgments of society.” Putting aside the fact the elected branches are currently pretty divided themselves, Ornstein’s embrace of politicians on the bench is factually wrong — former politicians on the bench can make difficult and politically controversial decisions just as well as former judges. For instance, Ornstein suggests that Citizens United would have come out differently with if there were more politicians on the bench, and he celebrates justices like Warren, Douglas, and Minton, among others, who had political experience prior to coming to the Court.
Ornstein seems to have forgotten that Citizens United was not the first time the law at issue — a ban on political expenditures by corporations and unions — had come before the Court. The Court had previously considered the ban twice and avoided the constitutional issue both times. In 1958, in U.S. v. International Union United Automobile, Aircraft, and Agricultural Implement Workers of America, three justices dissented and would have reached the constitutional issue and struck the law down. These three justices were Warren, Douglas, and Hugo Black, a former U.S. senator. In the dissent, Justice Douglas, a former Chairman of the Securities and Exchange Commission, called the law “a broadside assault on the freedom of political expression guaranteed by the First Amendment.” He wrote:
Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group — labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worth or unworthy.
Similarly, when the Court considered the law in 1948, four justices dissented in the case and would have reached the constitutional question and struck the law down. Although Justice Rutledge, a former academic and judge, wrote the dissent, he was joined by Justices Black, Douglas, and Murphy, who was a former U.S. Attorney General, Governor of Michigan, Mayor of Detroit, and Governor-General of the Philippines. Justice Rutledge’s dissent stated:
A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment.
These politicians grasped something that Ornstein does not. When the Constitution commands that “Congress shall make no law . . . abridging freedom of speech,” the Framers were specifically preventing the government from passing laws that curtailed speech, regardless of “trends” in society. It is the job of judges in constitutional cases to apply the Bill of Rights, especially in the face of public opposition — that is when adherence to constitutional foundations is most needed. Otherwise, the ability to speak comes only at the sufferance of those in power and gives the government the ability to neuter the First Amendment when it is politically desirable. Former politicians like Warren, Murphy, Douglas, and Black understood this well, as did the justices in the majority in Citizens United. Before he tries to change an institution established in 1789, Ornstein might want to consider that fact too.
— Bill Maurer is an executive director with the Institute for Justice.