The Supreme Court, Judicial Independence, And Mixed Messages

Okay, so this pretends to be a piece calling for measures to ensure the Court is not biased over the long term because some President has stacked the deck with ideological appointees.  And then the proposed solution would make it possible for Presidents to stack the deck with ideological appointees.  Excerpts:

...Every two years the president would appoint a new justice to the court, but only the nine most junior justices, by years of service, would sit and decide every case.

The rest would then act as a sort of “bench” team, sitting on cases as needed because of the disability or disqualification of one of the junior justices. These senior justices might also help decide which of the thousands of petitions the court receives each year should be fully considered, vote on procedural rulemaking, and perhaps sit on occasional cases presented to lower circuit courts.

In short, our proposal would revise the job of a justice to a more human scale and perhaps make the court less likely to impose erratic political preferences on the citizens it governs...

Yeah.  Because nothing could possibly go wrong with a President appointing a new justice every two years.  In no way would this enable any President to stack the Court in favor of their policies.  At.  All.



And then, in the last paragraph, the mask is removed.  This isn't about political impartiality or ending bias at all.  Excerpts:

...If five of our present justices broadly prohibit the federal government from providing accessible health care, Congress should consider using its constitutional power again to add two more justices — and impose a reasonable limit on the length of time that a mere mortal should hold so much political power.

In the middle of the article, he embraces former GOP presidential primary contender Gov. Rick Perry's proposal for Supreme Court term limits.  Excerpts:

...The situation brings to mind a proposal voiced most prominently by Gov. Rick Perry during his run for the Republican presidential nomination: judicial term limits.

The idea isn’t new. High-ranking judges in all major nations, and all 50 states, are subject to age or term limits. The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land?...

Contrast that treatment of Perry's proposal with this piece by Professor Erwin Chemerinsky, dean of the UC Irvine School of Law and author of The Conservative Assault on the Constitution, from the LA Times in the fall of 2011.  Excerpts:

...Perry has said that he wants to abolish lifetime tenure for federal judges.

However, Article III, Section 1 of the Constitution provides that the justices of the Supreme Court and the lower federal courts have life tenure unless they are impeached and removed from office.

Gingrich also has explicitly raised the possibility of impeaching judges, but Article II, Section 4 of the Constitution allows impeachment only for "treason, bribery, and high crimes and misdemeanors." It does not allow, and never has been used, to remove judges because their opinions are unpopular. Life tenure for federal judges exists precisely so that they will decide cases based on their best understanding of the Constitution and the law, not to please politicians and voters.

The power of federal courts to declare executive and legislative acts unconstitutional, which Gingrich and other candidates question, has existed throughout American history. In 1803, in Marbury vs. Madison, the court declared that "it is the province and duty of the judicial department to say what the law is." Rarely in all of American history has any president defied a Supreme Court ruling.

At the very least, these candidates do a disservice to the American people when they are clearly wrong about the Constitution. But beyond their miseducating the public, the substance of their comments is truly frightening. They apparently reject the very notion of judicial independence.

They also seem to reject the idea of the rule of law and the need for judicial review to enforce the Constitution. In Marbury, the Supreme Court also explained that the limits of the Constitution are meaningless unless there is a judiciary to enforce it.

Perhaps these attacks on the federal judiciary are just part of the exceptionally poisonous rhetoric of these divisive times. But it is scary to think of the possibility of a president who largely rejects judicial review, gives no apparent importance to judicial independence, pledges to defy Supreme Court rulings or wants to remove federal judges based on disagreement with their rulings. And yet these are changes that candidate after candidate in the Republican race has been talking about.

Americans across the political spectrum should condemn such rhetoric and remember that an independent judiciary enforcing the Constitution is a crucial feature of American democracy.

Gee, it sure seems like Dean Erwin might take issue with Presidential candidates who would challenge judicial review.  Maybe?  No, apparently not.  Excerpts:

...While unusual for a president to weigh in on a Supreme Court review after the arguments, academics have said that opponents of the healthcare law had been outspoken and Obama was within his rights to do the same.

"To be clear, there is absolutely nothing wrong with the president saying this. Why might the president do this? It is an election year," said Erwin Chemerinsky, dean of the University of California, Irvine law school. "If the court strikes down the law, this will be the message. He is getting it out now..."

Hm.  Does Dean Erwin have an opinion on the constitutionality of the health care law?  Well, look!  Here it is!  Interesting discussion of the Supreme Court's hearing here.  Here's a panel where a paper by Dean Erwin on the Supreme Court's consideration of the health care law is the subject of discussion. Another panelist gives a summary of his paper at about 14:50; the dean's response starts at about 25:00.