Is Rick Perry right about term limits for the Supreme Court?
By Jeff MillsSeptember 1st, 2011, 3:30 pmComments (14)
Governor Goodhair himself, Rick Perry, wants to overhaul the lifetime tenure system for Supreme Court justices instituted by the Founding Fathers. Perry already supports proposed federal amendments that would outlaw gay marriage and abortion, and he would also like to do away with permanent job security on the Court by amending Article III, Section I of the Constitution. I have a sneaking suspicion that Clarence Thomas doesn't have his back on this one.
Perry thinks that, over the past century, judges have gotten a little too extra-Constitutional (read: activist) in their ways, becoming "unaccountable" to the people. I don't know if this is true, but I do know I wouldn't want to get on Antonin Scalia's bad side. As a states' rights guy, Perry proposes that the "nine oligarchs in robes" serve eighteen-year terms, staggered for retirements every two years. This would give presidents less incentive to nominate younger-skewing potential justices, and help keep mainstream legal thought in the forefront. But it probably won't prevent nominees from having attended either Harvard or Yale Law School, as every current justice has.
In his book, Fed Up! Our Fight to Save America from Washington, the former Eagle Scout from Paint Creek, Texas writes:
"[W]e should take steps to restrict the unlimited power of the courts to rule over us with no accountability. There are a number of ideas about how to do this... One such reform would be to institute term limits on what are now lifetime appointments for federal judges, particularly those on the Supreme Court or the circuit courts, which have so much power. One proposal, for example, would have judges roll off every two years based on seniority."
Another way Perry proposes to put those power-drunk justices in their place is by granting Congress veto power over Court decisions provided they can muster a two-thirds vote. He writes, "[A]llow Congress to override the Supreme Court with a two-thirds vote in both the House and Senate, which risks increased politicization of judicial decisions, but also has the benefit of letting the people stop the Court from unilaterally deciding policy."
Does anyone think this populist-sounding Perry makes a good point? He's by no means the first to float the idea of Supreme Court term limits, but it does provide a clue about how a President Perry might operate. He told an interviewer that the framers had said, "Listen, if you all in the future think things are so important that you need to change the Constitution, here's the way you do it."
Commentarium (14 Comments)
The supreme court, unaccountable to the people? WTF, how can the popular will be respected and carried out then, it's not like we have another two branches of government that increasingly spend more and more of their time swaying public opinion. Oh shit wait. The courts is rightly not concerned with public opinion, and rightly not elected, etc etc, because their principle job is to insure that laws passed are in accordance with the constitution, regardless of whether or not the man on the street likes it. That Perry doesn't like them, or their decisions, is more evidence that they are doing their jobs, and not serving a narrow, short sighted political ideology, but instead serving their intended purpose.
Unfortunately, it is completely concerned with public opinion. Although I can't remember the case name right now, the decision which re-instated the death penalty (Gregg?) actually stated that an influencing factor was that public opinion of the death penalty had changed dramatically between that case and the previous one outlawing the death penalty.
Nonetheless, everything else Perry said is completely ridiculous (especially implying that the Court has 'unlimited power' unless his silly machinations are implemented -- haha what the fuck is he even talking about, someone call Andrew Jackson and alert him immediately; and I would make the obvious, OBVIOUS motherfucking point about the motherfucking two-thirds rule being the amendment process, but profrobert already did it and with far fewer 'motherfuckers'), and as the Supreme Court is probably the least deformed of all our branches of government, I'm not that inclined to fuck with it.
Yeah, Gregg was the reinstatement case after Furman struck down all the existing death penalty laws. That's a special case, though, because it construed the "cruel and unusual punishment" language of the Eighth Amendment. The "popularity" of the death penalty was relevant to whether or not it was "unusual"; in other words, if, say only Delaware had a death penalty, and all the other states had voted theirs away, the Court might have gone the other way.
Good to know! It's been too long since I've been out of school.
Don't know how to say this without being cheesy, but: I really appreciate what you do on Hooksexup! I feel like I'm going through the news with one of my favorite professors from college.
That's very kind of you to say, thank you. (I'm not sure my law students are as enthusiastic -- apparently, I'm a better professor to have had than to have because I'm very tough on their work.)
Why not simply resurrect FDR's court-packing plan?
This is just a lot of grandstanding. Under Perry's plan, each President would get two appointments per term (plus balance-of-term appointments, presumably, for anyone who did die or resign). So far, Obama has two, right on pace; Bush II had two (down two); Clinton had two (down two); Bush I had two (as per Perry's plan); Reagan had three (down one); Carter none (down 2); Nixon-Ford had five (plus one); Kennedy-Johnson had four (as per Perry). So net, there would be little change. Democrats would have had four more appointments than they did, Republicans would have had two more appointments than they did. So Perry's plan, over the last 50 years, would have resulted in more Democratic-appointed justices. Ha ha.
I'm not opposed in principle to 18-year terms for justices. I don't think it would materially change the Court's functioning. It certainly wouldn't expose the justices to political pressures, particularly if there were a rule you could not be reappointed.
One important point Perry overlooks, however, is that the Court is the last word only when it declares a law unconstitutional. A declaration that a law is constitutional, or an interpretation of a statute on non-constitutional grounds (like "what does this phrase in this statute mean," as opposed to "does the constitution bar this statute") can be changed by the Congress (or a state legislature if it's a state law) with a simple majority.
As for the two-thirds supermajority overturning findings of unconstitutionality, well, if you also add ratification by three quarters of the state legislatures, you already have that -- it's the amendment process. There are very few congressionally approved amendments that don't get ratified by the states -- six to be exact (though the Equal Rights Amendment was one).
So there's Rick Perry's position in a nutshell: More justices appointed by Democrats and passage of the ERA! I really hope someone in the media picks up on this.
Another way Perry proposes to put those power-drunk justices in their place is by granting Congress veto power over Court decisions provided they can muster a two-thirds vote. He writes, "[A]llow Congress to override the Supreme Court with a two-thirds vote in both the House and Senate, which risks increased politicization of judicial decisions, but also has the benefit of letting the people stop the Court from unilaterally deciding policy."
Um, Congress already HAS a way to override a Supreme Court decision: they can create a new Constitutional amendment. That's kind of the point of the SCOTUS—they provide a supposedly-neutral way to determine if a law violate the Constitution. If it does, then the Constitution needs to be changed before the law can be passed again. You can't just vote that away.
In other words, Rick Perry is an idiot and a douche.
I'm not so sure about the veto thing - as Drew points out, the proposal is already most of the way to a constitutional amendment, which can override a Supreme Court decision anyway.
The term limit thing is probably a good idea, and this is already the status quo for the apex court in most other countries. For one, it solves the problem that some judges develop senile dementia but there's no means to force them to step down on grounds of incompetence.
I don't know how I feel about this. I wouldn't go as far as to say that the congress can veto supreme court decisions but I think there aren't the proper checks and balances on the Supreme Court as there is on the other two branches. The reason it doesn't have that many checks and balances outside of the legislative branch being able to make constitutional amendments (which happens rarely) is because they are suppose to not have bias sense they can only go by the constitution. But, I think it could be arguable that the judicial branch has shown bias in the past. I can think of two examples off the top of my head, the time when Supreme Court upheld slavery and recently with the decision that said Corporations can have unlimited lobbying power including being able to "fund elected official's campaigns" (aka buy votes) as much as they want.
I dunno. I don't think I'm really adding much to the discussion. But, Rick Perry certainly has a point in this matter even if I don't entirely agree with his alternatives.
"Is Rick Perry right, blah blah blah?"
No. You could probably get a sensible statement if you replaced every word he says with an antonym.
You're exactly and perfectly right. Nothing Rick "Goodhair" Perry says is ever right. Nothing. Ever.
Well, if what he says pits him against Roberts, Alito, Thomas, and Scalia, he just might be right
Let's see. The court isn't following the Constitution well enough. So we need to change the Constitution. So that it can be better followed. Right....
Only from someone from Texas, where the Constitution might as well be written on a dry erase board for the frequency that it's changed.
Perry is correct that the court is filled with activist judges. their names are Roberts, Alito, Thomas, and Scalia. would term limits make the court less ideologically-driven? dunno. i doubt he'll have much support on either side of the divide.
Now you say something