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Thursday, September 01, 2011
Con law makes strange bedfellows
Texas Governor Rick Perry, a serious candidate for the Republican Presidential nomination, supports 18-year term limits for Supreme Court justices. Among those running to agree with him today are Jon Chait, Kevin Drum, and Jack Balkin, who was one of many law professors (across the ideological spectrum) to endorse Paul Carrington's proposals for Supreme Court reform. And while Perry is talking about amending Article III (one of many amendments he proposes), Carrington's proposal likely could be done by ordinary legislation.
Of course, Perry's rhetoric is much different, with Perry talking about taking "steps to restrict the unlimited power of the courts to rule over us with no accountability." I like the comment in one story from Lucas Powe (a supporter of the Carrington proposal) that he doubts Perry would be screaming about unaccountable activist justices if the Court strikes down the individual mandate (with a likely majority that would include three justices who, under any of these proposals, no longer would be on the Court).
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Yeah, speaking of the three justices who would be gone under Carrington's proposal, aren't they a real problem for Carrington's argument? Carrington says he wants 18-year term limits because currently "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." Now, currently we have a Court split 5-4, or 4-1-4. Under Carrington's plan, we'd have 7 left-of-center Justices, if not liberals, and a tiny conservative wing comprised of Roberts and Alito. We'd lose Thomas, the Court's closest thing to a Tea Partier, and Kennedy, its closest thing to a libertarian. By any measure, that seems a lot less reflective of contemporary moral and political values than the actual Court. Of course, maybe this is atypical of the results we'd get under the Carrington scheme. But I'm not so sure, because any time you get a period dominated by Presidents of one party or another, you'd get a very one-sided Court. For example, Balkin finds that, had this scheme been in effect in 1993, the only Democratic appointees on the Court would be Ginsburg and a Carter appointee.
Posted by: Asher Steinberg | Sep 1, 2011 11:24:55 PM
No, it would be a 5-4 Democratic split--Roberts, Alito, and two other GWB appointees. And that seems realistic, since the Democrats have held the White House for 10 of the past 18 years (going back to 1993). Similarly, it seems about right that the balance was tipped so far to the Republicans in 1993, since that marked the end of an 18-year period (going back to 1975) in which Republicans held the White House for 14 years. While I am not entirely on board with the plan, it has the virtue of never having the balance on the Court too far out of whack assuming a cycle of fairly consistent party change every 8 years, but a large imbalance if you get longer periods of dominance by one party (the GOP from 1968-1992 or the Dems from 1933-1952). Which seems appropriate. The point of the proposal is to let the presidential election control the appointment process, not strategic retirement decisions (although some of those remain possible).
Posted by: Howard Wasserman | Sep 2, 2011 12:34:05 AM
Oh, you're right - I was assuming the existing Court and lopping off Justices who had been on the Court for over 18 years. I still, however, don't think that large imbalances correlating to periods of one-party dominance in the White House is ever desirable on the Court, because I wouldn't assume that votes for presidential candidates have a great deal to do with voters' views on the matters the Court adjudicates. (Excepting, probably, the New Deal era.) For example, was 1968-1992 really a very conservative period in the life of American moral and political values? We had a Democratic House the entire time, Republican Presidents in Nixon and Ford who were to the left of virtually every member of today's Republican Party (and arguably to the left of Clinton as well), a much more liberal Democratic Party, a much smaller social conservative movement, far higher tax rates, a bigger welfare state, the heyday of federally promoted affirmative action, etc. What happened from 1968-1992 strikes me as largely the result of economic and foreign policy exigencies that had extremely little to do with how Americans felt about the Warren Court, so I think it's quite appropriate that Brennan, Marshall and White got to stay on the Court for as long as they did.
Posted by: Asher Steinberg | Sep 2, 2011 1:46:34 AM
Again, I am not on board with the proposal, but I'll defend it for these purposes. I think you're point proves too much. Any overwhelming Democratic swing in 1993 would have lasted for six years--By 1999, the Court would have been Ginsburg, Breyer, and three Clinton appointees. In terms of partisan dominance and your point that the public is not thinking of judicial matters when they cast presidential votes, is that better than having Reagan appoint people who now have been on the Court for 25 years? Any entrenchment lasts a much shorter period. Same goes to the broadal spectral shift of the parties--why should Justice X serve 30 years when she no longer even reflects her own appointing party's ideology.
Posted by: Howard Wasserman | Sep 2, 2011 7:20:14 AM