A recent poll conducted by Reuters/Ipsos, and reported on IVN, found that 66% of Americans now support Supreme Court term limits, and nearly half believe justices should be elected. To some, this may appear to be a reaction to the current paradigm of political dysfunction permeating out of Washington. However, this debate actually began over 200 years ago as the Founders drafted the Constitution and tends to surface during times of dissatisfaction with the court.
Without a doubt, this latest debate is a reaction to the court's recent controversial decisions on the Affordable Care Act and the legalization of gay marriage. Despite this dissatisfaction with the court, however, there are key reasons for maintaining the current system of lifetime appointments. But don't take my word for it — review Federalist Paper No. 78, where Alexander Hamilton describes reasons that were just as salient in 1788 as they are today.
The main function of the Constitution is the protection of minority viewpoints against the majority.
The main function of the Constitution is the protection of minority viewpoints against that of the majority. Whether that is the right of people to burn the American flag, worship a different God, pass out communist pamphlets, or espouse Nazi views, the Constitution guarantees rights that cannot be taken away by the legislature or executive no matter how popular such action may be.
For this reason, the Founders granted the judiciary the authority to interpret the Constitution. After all, if the legislature could interpret whether its own actions were constitutional "… all the reservations of particular rights or privileges would amount to nothing," as Hamilton once said.
To accomplish this purpose requires complete judicial independence from the other branches of government and therefore from the majority impulse of the time that could lead to a violation of those rights.
The judiciary, according to Hamilton, is the weakest of the branches of government and has "neither Force nor Will." This means that the judiciary's actions will not harm the other branches, and it can only judge, relying on the other branches for enforcement, particularly the executive. Since it is the weakest branch of government that cannot seize power from the other branches, it must be protected from encroachments of the other branches. We must preserve the separation of powers.
Only by preserving this separation can the constitutional rights of individuals be safeguarded. Any permeation or capture by the legislature or executive could place these rights at risk.
A lifetime appointment would therefore be necessary to preserve this level of independence. How else would a court exercise such independence while depending on the president or Congress, or both to obtain another appointment? How could they exercise independence when reliant on the electorate, especially in today's climate of corporate influence?
Accountability, by its very virtue, limits independence. If someone is to be held accountable, their choices are limited because they cannot offend those to whom they will be held accountable. Therefore, justices will be more preoccupied with not offending the other branches — or the majority viewpoint in society — than with actually protecting constitutional rights.
Judicial independence also allows for an adherence to precedent that exposure to the political whims of society simply does not allow.
While Hamilton does not outright discuss a term limit, by which a judge could serve for a single term of 10 or 20 years with no reappointment, even that idea threatens judicial independence. A justice might be more inclined to look to his or her political future outside the court, maybe within another branch of government and may also be more tempted to follow those political winds rather than the Constitution. There may then be a revolving door of former justices now paid to lobby their former colleagues.
Judicial independence also allows for an adherence to precedent that exposure to the political whims of society simply does not allow. An issue like abortion, for example, cannot be legal and constitutional for 10 years under a liberal court, and illegal for 10 years under a conservative court. Individuals build their lives and structure their affairs based on stable legal principles.
Exposing the court to subjugation by the other branches or to the electorate would simply create a miniature legislature rubberstamping the actions of the other branches and would create unstable constitutional chaos in planning one's legal affairs.
Besides judicial independence, Hamilton mentions the need to preserve the quality of our justices. The law is voluminous and requires a high level of skill to interpret and understand. Therefore, it requires people with exceptional legal reasoning.
Currently, when it comes to ambassadors and cabinet officials, political favors are often traded and political hacks are placed in positions they are not qualified for. Do we really want to place political hacks in charge of interpreting our constitutional rights?
There are many problems with the modern Supreme Court, most of them stemming from the dysfunctional, hyper-partisan way that we elect people in our elected branches. Therefore, reform efforts should focus on these branches and how current elected officials are elected. Simply creating more elected officials — or limiting the independence of the judiciary — would not solve any problems and would likely create more of them.
Jack Scherer is an attorney in the New York City area with a Juris Doctor from Pace Law School and a Bachelors degree in Political Science from the City University of New York, Queens College.