Opinion: The Judicial Power
By Christopher Condon, Columnist
The Constitution of the United States contains relatively little material concerning the federal judiciary, and even less regarding the Supreme Court. In fact, one of the only provisions of the document that mentions the Court is the one that mandates a judicial term of “good behaviour,” which has come to be interpreted as a period during which judges or justices do not commit a criminal offense. Following the retirement of Justice Anthony Kennedy from the High Court, many across the nation have begun to issue various proposals to limit service on the Supreme Court to a term of years rather than that of good behavior. Therefore, it has now become prudent to examine first the role of the judiciary in good governance, and second the contrary nature of judicial term limits to this proper role.
The Supreme Court of the United States was created by the Constitution as a bulwark against majoritarian rule. Vested with the authority to act as the arbiter of constitutional disputes and disagreements regarding the meaning of federal law, the Court acts only in relation to the other branches with no police power and no purse strings to tighten or relax. Hamilton lends gravity to this argument when outlining the importance of the federal judiciary in Federalist No. 78, where he rebuffs claims by the anti-federalists that the third branch will wield unchecked power against the other two: “…the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.” Although the Court may be structurally weakest among the branches of government, its importance and role can hardly be overstated.
As the final decider in questions regarding the interpretation of the Constitution, the Supreme Court acts as the ultimate defense against minority oppression by a vengeful majority. Granted, the Court has not always succeeded in this endeavor, but the reason for repeated failure is most often that justices view their power as subservient to both the executive and the legislature, while they are meant to be regarded as equal in the constitutional scheme. Most assuredly, justices have been wary of exerting judicial influence because the Court’s authority rests solely in the hearts and minds of the citizenry, while they ironically are structurally the furthest from the popular will. Judicial legitimacy, as has been the case throughout history, is a matter of faith and confidence. This is all the more reason to preserve judicial independence, as a Court subservient to the other branches ultimately becomes little more than a passive bystander in the business of government. Rather than acting as a staunch protector of constitutional liberty, the Court may become an atrophied capitulator to its surroundings.
Robert Yates is often promoted as one providing a sound case against a political and unruly judiciary in the lesser-known Anti-Federalist Papers. Therein, he addresses the lack of accountability regarding the Supreme Court, taking issue with the lack of a superior body to correct the “error” of the High Court. Although there are many issues with this argument, which include questioning of the very principle of judicial review, those issues are best saved for another time. It must now be stressed that Yates’ writings absolutely do not strengthen the case for judicial term limits because he actually agrees with the Constitution’s provision for judicial terms of good behavior. Even Yates agrees with Hamiltonians that the notion of judicial good behavior, originating in the judicial system of the United Kingdom, is essential in ensuring the independence of the judiciary from the whims of the other branches. Historically, the judiciary was subject to the whims of the King and would often rule in his favor to protect itself from his wrath. Now, as Hamilton argues, it insulates the Court from the popular sentiments of the legislature.
If the assumption is made that promoters of judicial term limits carry more concern regarding the politicization of the judicial nomination process itself, their case is likewise not strengthened. Under the current constitutional framework, justices serve until retirement or death, ensuring a certain level of unpredictability regarding the precise time of retirement. Alternatively, if justices’ retirement from the bench was ensured by a limited term of years, then the senatorial struggle over nomination and confirmation would be much more strategically planned and executed by both parties. With this condition comes the same level of campaigning and vitriol that accompanies judicial nominations now, except this would be magnified and stretched to encompass a sort of quasi-campaign season, much like that of the current presidency. Suggesting that it is better for voters in presidential elections to know exactly when judicial seats are at stake is equally as unwise, as this would incentivize presidential candidates to politicize the Court even further to energize their political bases.
Accounting for these reasons, it is clear that the carefully considered term of good behavior is an essential feature of the Supreme Court of the United States. If justices were mandated to retire by our Constitution, the importance of the judiciary would be reduced to that of a glorified third chamber of Congress. As the branch furthest from the will of the populace, the Court must serve as the vanguard against the curtailment of minority liberty. If justices are subject to the whims and interests of senators on a scheduled basis even more than they are in the present, Americans will undoubtedly witness a devaluation and veritable declawing of the Supreme Court as a coequal branch, becoming ever more transient and subservient to the remaining branches. In this sense, it does not matter if term limits “benefit both parties,” because term limits would be a detriment to the Court overall and the liberties it protects. Furthermore, the independence of the Supreme Court as established in the Constitution is far from a “quixotic” notion, as it is a fundamental pillar of American government.