7 ms·

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 hi

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.

ttul 7y ago
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.
- ashelmire 7y ago
  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doesn't get to completely stack the court, but each has a fair impact on it, and we aren't stuck with judges with outdated ideologies forever (unless people vote for it).
  - eridius 7y ago
    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.
    - ashelmire 7y ago
      > What we absolutely need to avoid is having justices have to care about reelection It's an appointment, so they would only have to convince the president. Or you can prevent reappointment at all.
      - eridius 7y ago
        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".
  - chimeracoder 7y ago
    > 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doesn't get to completely stack the court, but each has a fair impact on it, and we aren't stuck with judges with outdated ideologies forever (unless people vote for it).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.
  - cataphract 7y ago
    The proposal more often floated around is an 18-year term limit (see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=701121 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=701121 ), which would give each president 2 appointments. 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.
    - dragonwriter 7y ago
      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.
    - kkarakk 7y ago
      would it even matter when presidents are now billionaires in their own right?
  - dragonwriter 7y ago
    > 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.)
    - rayiner 7y ago
      Would be psyched to live in a world where Bush II got to appoint the entire Supreme Court after 9/11.
      - ashelmire 7y ago
        You'd have lived in a world where the current Supreme Court was appointed almost entirely by Obama. Also, Citizen's United wouldn't have been ruled the way it was. Would be a damn better world.
        harryh 7y ago
        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.
- bastawhiz 7y ago
  ...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.
  - chipotle_coyote 7y ago
    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.
    - LanceH 7y ago
      The problem with a 10 year employment is the expectation of getting paid for performance at the end of that term.
      - spuz 7y ago
        What do you mean by this?
        gowld 7y ago
        https://en.wikipedia.org/wiki/Revolving_door_(politics) https://en.wikipedia.org/wiki/Revolving_door_(politics)
    - sieabahlpark 7y ago
      That completely eliminates the judiciary branch as an effective check against the other two. It's unfortunate but having a stalemate is the best course to eliminate rash changes to government when there is a lot of divisiveness.
- MagicPropmaker 7y ago
  Section 3 of Article 1 of the U.S. Constitution establishes this, and it was well considered and debated by our founders.
SpikeDad 7y ago
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.
- rexpop 7y ago
  > they care only they're well regarded by their own political persuasion. I'd be surprised to discover any alternatives to this constraint.
- chrisseaton 7y ago
  > 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.
  - deleted 7y ago
    [deleted]
  - kelnos 7y ago
    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.
    - dvtrn 7y ago
      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.
luckylion 7y ago
"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.
- jethro_tell 7y ago
  This isn't in reference to popularity now, but more being on the right side of history later.
  - luckylion 7y ago
    "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.
    - skybrian 7y ago
      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.
      - luckylion 7y ago
        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"
burtonator 7y ago
> There is literally nothing else for these folks to strive for except being well regarded in the history books... Or I don't know.. money, bribes, favoritism?
gowld 7y ago
That's why it should be a single-term appointment, perhaps 18 years. Lifetime is a ridiculous term.
int_19h 7y ago
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.

ttul 7y ago

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.

ashelmire 7y ago
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).
- eridius 7y ago
  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.
  - ashelmire 7y ago
    > What we absolutely need to avoid is having justices have to care about reelection It's an appointment, so they would only have to convince the president. Or you can prevent reappointment at all.
    - eridius 7y ago
      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".
- chimeracoder 7y ago
  > 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.
- cataphract 7y ago
  The proposal more often floated around is an 18-year term limit (see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=701121 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=701121 ), which would give each president 2 appointments. 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.
  - dragonwriter 7y ago
    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.
  - kkarakk 7y ago
    would it even matter when presidents are now billionaires in their own right?
- dragonwriter 7y ago
  > 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.)
  - rayiner 7y ago
    Would be psyched to live in a world where Bush II got to appoint the entire Supreme Court after 9/11.
    - ashelmire 7y ago
      You'd have lived in a world where the current Supreme Court was appointed almost entirely by Obama. Also, Citizen's United wouldn't have been ruled the way it was. Would be a damn better world.
      - harryh 7y ago
        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.
bastawhiz 7y ago
...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.
- chipotle_coyote 7y ago
  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.
  - LanceH 7y ago
    The problem with a 10 year employment is the expectation of getting paid for performance at the end of that term.
    - spuz 7y ago
      What do you mean by this?
      - gowld 7y ago
        https://en.wikipedia.org/wiki/Revolving_door_(politics) https://en.wikipedia.org/wiki/Revolving_door_(politics)
  - sieabahlpark 7y ago
    That completely eliminates the judiciary branch as an effective check against the other two. It's unfortunate but having a stalemate is the best course to eliminate rash changes to government when there is a lot of divisiveness.
MagicPropmaker 7y ago
Section 3 of Article 1 of the U.S. Constitution establishes this, and it was well considered and debated by our founders.

SpikeDad 7y ago

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.

rexpop 7y ago
> they care only they're well regarded by their own political persuasion. I'd be surprised to discover any alternatives to this constraint.
chrisseaton 7y ago
> 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.
- deleted 7y ago
  [deleted]
- kelnos 7y ago
  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.
  - dvtrn 7y ago
    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.

luckylion 7y ago

"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.

jethro_tell 7y ago
This isn't in reference to popularity now, but more being on the right side of history later.
- luckylion 7y ago
  "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.
  - skybrian 7y ago
    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.
    - luckylion 7y ago
      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"

burtonator 7y ago

> There is literally nothing else for these folks to strive for except being well regarded in the history books... Or I don't know.. money, bribes, favoritism?

gowld 7y ago

That's why it should be a single-term appointment, perhaps 18 years. Lifetime is a ridiculous term.

int_19h 7y ago

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.