This is what is great about it being a lifetime appointment.
There is literally nothing else for these folks to strive for except being well regarded in the history books, so they can finally do what they regard as the best thing to do.
This is what's terrible about being a lifetime appointment. Once a politicial driven justice gets appointed there's literally nothing that will change them.
Perhaps in the "old" days when Justices had the feelings you're attributing it might be true but now in the current political situation ideologues are who are sought out to appoint and they care only they're well regarded by their own political persuasion.
> they care only they're well regarded by their own political persuasion
Why would they care about that? They already have the job for life. They don’t need to please their audience any more. They’re free to act on principle.
Because people aren't actually like that in real life. Just because they've gotten a to a particular lifetime job in life, it doesn't mean they don't still crave the approval of their peers. They don't live in a vacuum. They want to still be invited to speak at the places they usually speak, attend the same parties they usually attend, etc.
And beyond that, there's a more fundamental issue: people like this are chosen for these roles because of their fervent, polarized political beliefs. Their principles, if they have any, are either aligned with or overcome by the politics. Their willingness to listen to reason and step outside their bubble is limited, unless doing so lines up with their politics.
> Are Supreme Court justices swayed by the political environment that surrounds them? Most people think "yes," and they point to the influence of the general public and the other branches of government on the Court. It is not that simple, however.
> As the eminent law and politics scholars Neal Devins and Lawrence Baum show in The Company They Keep, justices today are reacting far more to subtle social forces in their own elite legal world than to pressure from the other branches of government or mass public opinion. In particular, the authors draw from social psychology research to show why Justices are apt to follow the lead of the elite social networks that they are a part of.
Exactly. And the Heritage Society goes out of its way to cultivate a bunch of peers, current Supreme Court Justices being the first and foremost of those peers.
Their willingness to listen to reason and step outside their bubble is limited, unless doing so lines up with their politics.
I certainly hope current SCOTUS justices have a solid grasp of history and what happened to the last SCOTUS justice who acted in a manner you're suggesting. And this is an institution that (also, as history would have it) does a pretty good job giving a wide berth to precedent.
A sub-lifetime appointment is also really bad for the Court system, too- the Court gets the final say in the law- and needs independence- and if we were to hold elections every few years for the Supreme Court, we would have an even more partisan government, as people would go campaigning for that office, with all its mud-slinging and hyper-partisanship that seems to be necessary to get elected in the United States' current political climate.
Sometimes, having an old guy say "whoa, slow down! That's a bad idea" is a good idea.
Having an elected judiciary is in itself a terrible idea, and not the only option against lifetime appointment. There's also term limits for appointments.
I agree with you, but also think SCOTUS and similar picks need to require a supermajority vote. That is, I don't have a problem with lifetime appointments to SCOTUS, but I do think if that's the case we need to base those appointments on some kind of trans-partisan consensus.
That's why you don't let a single political side appoint all of the judges, regardless of what side you reside on. You don't have a balance of opinions if everyone has the same opinion.
There are valid arguments against term limits for judges, too.
I think that the terms don't actually matter much. The real problem with SCOTUS is that it represents extreme concentration of political power in our system that doesn't have any direct checks on it. Then you have stare decisis, which makes it so much harder to overturn decisions - so even indirect checks are limited. That's why its lack of accountability (e.g. term limits) is such a big problem. It's also why it was inevitable for it to become more partisan over time - having a partisan majority on the court is basically the equivalent of having nukes, and once one side starts moving in that direction, the other will inevitably follow. And now we're at the point where many people vote for president solely on the basis of what kind of judges they will appoint - and it's not even an irrational approach.
So I think that it's better to make the court less powerful, such that those appointments are not quite so important. One particular idea that I had is to abandon simple majorities as the way to decide matters on the court, and run it more like a jury - basically, the only way to declare something to be definitely unconstitutional, or definitely constitutional, should be by unanimous decision, or perhaps a strong supermajority (say 7 out of 9?). If a panel of people who are specifically chosen as legal experts cannot agree what the Constitution means with respect to something, I think the most sensible interpretation is that it's ambiguous - but then going with a simple majority would be very wrong.
Instead, if the judges cannot agree, this should automatically trigger a constitutional amendment process. Basically, have them all write opinions explaining why they cannot agree with their opponents on the court, and what changes to the Constitution would be necessary before they can agree. Submit all those changes as proposals for ratification, using the normal process, except that only one can be ratified, and that automatically rejects the other changes. If one of the amendments is ratified, that resolves the issue unambiguously and with an explicit rule for future cases like that. If none get ratified, then the lower court decision stands, but it does not set a precedent - the constitutional question remains open, and can be challenged again.
I would expect this to result in more unanimous or supermajority decisions with less extreme and more narrow effects, because the judges would be more likely to try to hammer out a compromise to cross the threshold.
A ten year term ought to do the trick, though. And would allow the passage of time to undo any stacking of the court that a particular president wants to engage in.
...until you get presidential candidates campaigning on the promise that they'll fill SCOTUS seats with the candidates of their alignment. It's practically an election by proxy.
But we have that now. The idea of setting a term limit for Supreme Court justices is that it would minimize the effect of politicized appointments. Assuming the party that gets to make the appointments shifts over time, the makeup of the court is likely to be more balanced overall.
6 year staggered appointments. So 3 justices terms are up every 2 years. Means one president doesn't get to completely stack the court, but each has a fair impact on it, and we aren't stuck with judges with outdated ideologies forever (unless people vote for it).
The big difficult, however, is how to make sure that a hostile senate wouldn't just block all nominations (which is the new norm). Some people like Calabresi have suggested that the president and everyone in the senate would be denied all compensation (IIRC even from private parties) until the seat is filled. I don't think that's a workable idea though.
The simple way to stop the Senate from just blocking everything (which it does by not scheduling a vote, to avoid accountability of individual senators to voting down qualified candidates) is to reshape their confirmation power to a power to actively reject.
6 years is awfully short for this sort of thing. What we absolutely need to avoid is having justices have to care about reelection, which means we need to say justices can only ever serve one term, which means we need longer terms.
Ok "reelection" is the wrong term, but if anything this is worse, because if judges can have multiple terms then it means they're beholden to the current president when their term ends and therefore will be heavily swayed by party politics. This is why judgeships are normally lifetime roles, though the important part of "lifetime role" is "only one term" and not "never ends".
> 6 year staggered appointments. So 3 justices terms are up every 2 years. Means one president doesn't get to completely stack the court
Most presidents are reelected to two terms, and so if judicial terms were offset from Presidential terms by a year, they'd have:
At 0 years, 0 justices they appointed.
At 1 year, 3 justices.
At 3 years, 6 justices.
At 5-8 years (and up until 1 year into the next term), all 9 justices.
So most President get to completely stack the court, the effects just don't last as long—the judiciary becomes another weathervane political branch of government, because the two of those was too few.
(And I don't even want to consider the consequences of all those short time justices looking to their post-Court career while sitting on the bench.)
Citizen's United was decided on Jan 21, 2010. At this point the court would have still been dominated by Bush II appointees not Obama ones. Always hard to say for sure, but it probably goes the same way under this proposal.
> 6 year staggered appointments. So 3 justices terms are up every 2 years. Means one president doesn't get to completely stack the court, but each has a fair impact on it, and we aren't stuck with judges with outdated ideologies forever (unless people vote for it).
That's how the Senate used to work, with state legislatures "electing" the senators.
That was replaced a hundred years ago with direct election of senators.
"Being well regarded in the history books" is something that a president or a king should strive for. A judge really shouldn't ever look out for his popularity when making decisions.
Lol judges interpret the law written in English as is. It's not whether it makes you feel good or not.
I'm sure plenty of people who voted Hitler thought they were in the right side of history until they suddenly weren't. That's the unfortunate part of politics, you have to build a system around not trusting people.
"The right side of history" is for politicians to pursue, not for judges. They aren't supposed to make policies or create laws, their job is to apply the laws. If they do their job correctly, and you disagree with the constitution and therefore also with their decisions, that should never be an issue for them.
This is sort of a stylized high-level description of how the U.S. government works, but it isn't really true. Law is often made by the courts (we call it precedent). Law is also made by the executive branch (by writing detailed regulations).
It does have to be justified based on existing law and this is important. But often, existing law only talks about broad principles or is contradictory, and judges are expected to fill in the details. In the case of the U.S. Constitution, these "details" can be really huge gaps.
Sure, that's unavoidable, but it's not the job definition. My point is that judges should never be guided by "how will some group/the majority/the elite/my children consider my decision now/in 5 years/in a century" but only by what they believe to be right at the moment of ruling. Otherwise, you're setting yourself up for arbitrary rulings to appease some future historian and create judges that try to rule to win popular support. "Polls say the majority wants the death penalty for petty theft? I better give them what they want"
I'm not sure there is much of a distinction in practice between asking "how will history see this" and trying to do what's right? You don't get a magic ball to find out what will actually be popular. It's just a way of putting yourself in a state of mind to take a more long-term view of things.
> I'm not sure there is much of a distinction in practice between asking "how will history see this" and trying to do what's right?
I didn't mean "what's right" as in "what I feel is right", but in's what the law says. The policies are for the politicians, trying to merge the judiciary and the legislative doesn't sound like such a great plan to me.
Well, maybe read the part about filling in the details again. "What the law says" is often not clear. That's why it made it to an appeals court. In such situations, judges can't simply follow existing law. It just doesn't provide that guidance.
And I totally agree with you on that, but that's not what "judge by thinking how good you'll look 50 years from now" is. Filling in the details is more "applying the spirit of the law to a particular case not explicitly covered", it's not about creating new de facto laws based on your personal (political) opinions.
Where do you think the "spirit of the law" comes from and how does a judge apply it? It's by thinking about what others would expect. Whether it's about the past (original intent) or the future, this is an act of imagination (supported by research) where they are thinking about what others would want. There isn't any "view from nowhere".
If you don't care about what other people want and how the law affects people, then there is no morality or justice and it might as well be a coin flip.
The supreme Court primarily hears important cases where there are strong and reasonable legal arguments on each side. The idea that they can just apply the law in these cases is a bit unrealistic. It's just not that clear cut in the majority of SC cases.
Sure. But it's still their job, even if it's hard. "What will the media think of me, if I decide X" would certainly make it easier, but fortunately doesn't seem to have become the guiding principle yet.
It's strange that the idea that judges shouldn't decide by (future) popularity gets downvoted. At times I don't understand this community at all. Is that a "I believe that my opinion will rule supreme in 20 years, so judges should submit to it now and just ignore the constitution"-thing?
Usually, the court decides important case on extremely subtly technical details unrelated to the main merits of the case, and the results are blown way out of proportion by the wider sociery.
They should strive to create equal protection under the law, which over time they have done, by striking down laws that aren't this like Jim Crow laws etc.
This is what an appeals court justice does and their check and balance role on the other two branches of govt.
There is literally nothing else for these folks to strive for except being well regarded in the history books, so they can finally do what they regard as the best thing to do.