Antonin Scalia

Antonin Scalia

When those old boys wrote our Constitution back in the 18th century, they did quite a good job. They realized that they had no hope of agreeing on what to do about one of the worst festering sores of the thirteen colonies — slavery — so they dexterously side-stepped that issue, leaving it to be decided, later on, by a heart-rending war. They couldn’t quite make up their minds about guns, so they wrote an amendment which either says that any clown can possess any gun he likes or, alternatively, that nobody can own a gun unless he belongs to a well-ordered militia, leaving it to later judges to decide which was meant. (As we know, they decided wrong.) By and large, though, they did get most things right.

Which makes you wonder why in heaven’s name they got so indefensibly wrong on the question of tenure for Supreme Court justices? When one of those critters is appointed he has no further job worries, ever. His appointment is for life.. Even if he is Antonin Scalia, who rejoices in partying with people who are likely to be at issue in a future Supreme Court case.

It would be theoretically possible, under the law, to impeach and ultimately remove a Supreme Court justice, but such an effort is so difficult that it has never happened. It isn’t even clear what a Supreme Court justice would have to do to be impeachable, since the Supreme Court, alone of all American federal courts, is not covered by the Code of Conduct for United States Judges.

Scalia will be remembered as the justice who, three weeks after the Supreme Court put former Vice President Dick Cheney’s wrapped-in-secrecy energy task force on the docket for investigation, promptly accepted the vice-president’s invitation to a spot of duck-hunting, including free transportation in Cheney’s personal jet. That wasn’t the end. His latest caper is to accept an invitation from the Tea Party to be the speaker at a closed-door seminar at its first Conservative Constitutional Seminar this month.

Since such a seminar deals with the very basis of the Tea Party’s reason for existing it would seem that participating in it, as described, would require Scalia to recuse himself in any future case involving the Tea Party’s basic actions. This, of course, is not likely to happen. Scalia is not a frequent recuser.

Which is why it would have been better if our Constitution writers had been a trifle less generous with tenure. We could have lived with, even, something like a 25-year term of office. That would give any appointee quite a lot of time to leave his stamp on America’s history of jurisprudence — and in the case of Antonin Scalia, who took his seat as a Ronald Reagan appointee on 26 September 1986, leave the rest of us to risk the flights of this headstrong man for only another few months.

20 Comments

  1. Tina Black says:

    I just keep hoping he will hunt with Cheney every weekend!

    Maybe they can do it after a few rounds of drinks.

  2. 300baud says:

    I agree with your view of the problem, and especially your view of Scalia. But I think lifetime appointment is the right choice.

    One of the most pernicious problems in the political sphere comes from everybody worrying about their next gig, and what they need to do now to prepare for that. Elected officials raise funds continuously, which means the concerns of major donors are never far from their minds. Public servants know they could be out with the next election, and often take the revolving door to the industries they regulate, or lobbying firms where they try to distort future governmental activity.

    A lifetime appointment removes them from those concerns. They never have to worry about what they\’re doing next. In some cases, like Scalia, it frees their inner hyena. But for most, I think it has the intended effect.

  3. Kirk says:

    Your 25-year plan sounds like a good amendment to the Constitution.

  4. Rich Rostrom says:

    Of 114 Justices, only 23 have served for 25 years or more.

    Those 23 Justices account for 713.5 of service; their shorter-serving colleagues for 1,122.1 years. Had there been such a limit, the long-servers would have only 575 years.

    The long-servers include several famous (or notorious) Justices: John Marshall; Joseph Story; Roger Taney (of Dred Scott infamy); Oliver Wendell Holmes; William O. Douglas; and most recently, Brennan, Rehnquist, and Stevens.

    It seems likely that some of these Justices, facing an end of term, would retire early to ensure that their successors would be chosen by a sympathetic President, rather than risk giving the choice to a hostile one.

    Taney, for instance: his term would have ended in March 1861. He would have retired in 1860 or early 1861, so that Buchanan rather than Lincoln would name his successor.

    Likewise, Brennan would retire in 1980.

  5. Jeff says:

    They were wise enough to include provisions for amending the Constitution, and I think ending the lifetime appointment of all Federal judges would make a lovely amendment that even the Congress could support.

  6. David B. Williams says:

    No, a fixed term of whatever length isn’t the answer. A young appointee might still have plans to consider if his term ended when he was only 65 or 70, and a 25-year limit would mean that 65-year-old appointees could still be warming a seat at age 90. I have long thought that what’s needed is an age cap, say, mandatory retirement at age 80. Thus job security remains ensured, doddering oldsters are prevented from going on auto pilot during their sunset years, and seats are freed up for new appointees with new thinking.

    I am less concerned with conflicts of interest. Rulings and dissents are public (and verbose), so a judge’s decision can be assessed with regard to outside influences. I suspect that Scalia would make the same ruling whether he was pals with one of the litigants or not. What you really object to are his rulings, not his associations.

  7. Greg Morrow says:

    Note: Justice Samuel Chase was impeached, but not convicted.

    The history of impeachment suggests that a high-ranking official can be impeached for anything Congress wants to impeach them for. That is, impeachment is (and was perceived by the Founders as) a political act, at least as much as an act of criminal justice.

    See, e.g., Rehnquist’s Grand Inquests.

  8. Tod says:

    /start snark

    Yeah… I notice YOU don’t say what the right answer was, either.

    /end snark

  9. Leo Petr says:

    While as a Canadian I’m not entirely familiar with the US court system, I look askance at any idea that would reduce the independence of the judicial branch of government. One thing I’ve noticed about not very democratic democracies (e.g. Russia, etc.) is that they all have a very weak judiciary.

  10. Rich Rostrom says:

    300baud says: One of the most pernicious problems in the political sphere comes from everybody worrying about their next gig… A lifetime appointment removes them from those concerns.

    Only if the appointee actually renounces other ambitions. Several Justices have left the Supreme Court to pursue political office.

    Justice Arthur Goldberg resigned from the Court in 1965 to become U.S. Ambassador to the UN. In 1970 he ran for Governor of New York.

    Justice James Byrnes resigned from the Court in 1942 (after less than 15 months service) to become Roosevelt’s “assistant President”; he later served as Secretary of State and was elected Governor of South Carolina.

    Justice Charles Evans Hughes resigned from the Court to be the Republican candidate for President in 1916.

    Justice David Davis was elected to the Senate in 1877. Though he had been a close associate of Lincoln, he was elected to the Senate by Democrats in the Illinois legislature. They hoped that as the Supreme Court member of the special commission to resolve the disputed election of 1876, he would vote with the Democrats. Instead he announced he would resign from the Court when his Senatorial term started and so could not serve on the commission.

    Chief Justice Salmon P. Chase sought the Democratic presidential nomination in 1868; in 1872 he helped organize the breakaway “Liberal Republican Party” and sought its nomination.

    Justice John McLean had ambitions for the 1860 Republican Presidential nomination. When the Dred Scott case came before the Court in 1857, the majority of the Court ruled against Scott, on narrow technical grounds. McLean, however, saw an opportunity to burnish his anti-slavery credentials, and wrote a hyperbolic dissent. This provoked Chief Justice Taney to issue his notorious sweeping pro-slavery opinion for the majority.

    Thus a “lifetime appointment” is no guarantee of the appointee’s future political celibacy.

  11. Robert Nowall says:

    Where were you when Justice Douglas stayed on the bench from Roosevelt through Ford? Or Justice Stevens, who stayed from Ford to Obama? Both of them were on the bench longer than Justice Scalia.

    No, it’s Justice Scalia who gets you talking about term limits…which suggests its not the length of service, but what decisions they make, that makes you want them off the bench.

  12. Total says:

    <i>Where were you when Justice Douglas stayed on the bench from Roosevelt through Ford? Or Justice Stevens, who stayed from Ford to Obama? Both of them were on the bench longer than Justice Scalia</i>

    And you know what Pohl was saying about Douglas at the time how?

  13. sean says:

    …alas,the corruption here in the U.S. has become so transparent what are we to do? Apathy teems.

  14. Robert Nowall says:

    …And you know what Pohl was saying about Douglas at the time how?…

    Not a thing, in anything I saw. And certainly not about Justice Stevens, whose term of service ended after I started reading this blog.

  15. Total says:

    \"Not a thing, in anything I saw. And certainly not about Justice Stevens, whose term of service ended after I started reading this blog\"

    So you don\’t really know, do you?

  16. Robert Nowall says:

    …So you don\’t really know, do you?…

    Then you admit no such writings exist…

  17. Ann Pohl says:

    I was glad to find this last week on your blog. Glad to see you’re doing some fast forward here to the present, based on your ever present commitment to apply your writing talent towards a better future for humanity.

    I am interested in the history of your life, and you have filled in some of my own long-standing gaps in your auto-narrative. But I personally haven’t read much science fiction since the early 60′s, when it became less of a People’s Art for conversing about contemporary concerns, and more of a mass pop-culture form. (NOTICE: I am aware that I am opening a can of worms with that statement, and I can say right now that my viewpoint on this is purely subjective and will not be debated by me at this point.) I have of course read more of your sci-fi than any other author in the genre.

    I think some of your greatest works have been the ones that addressed current environmental concerns, and concurrent political issues. I don’t always agree with your proposals for citizen action, but that’s just about tactics… small stuff in the bigger picture…

    E.g., as you know, I really admire your collaborative work with Asimov called Our Angry Earth… It is an excellent resource for people trying to understand current severe weather happenings. We’ve had our share of them here in Atlantic Canada, and most every local grassroots person thinks it’s to do with the melting polar caps. And what we’ve seen with storm surges and wind is nothing compared to earthquakes, mudslides, fires, storms, and other strange weather patterns in many other parts of the world.

    For a few weeks now, I’ve been thinking about posting a message asking you to write about current times and the weather. As a former weatherman, it’s something that has always personally interested you. How about it, Dad? Thanks for considering this idea. xo east cost annie

  18. Neil in Chicago says:

    Since several of the worst of the current Justices perjured themselves at their nomination hearings, they could be successfully impeached by an honest Senate . . .

  19. pst314 says:

    Neil in Chicago: Could you please name the justices and how they perjured themselves?

  20. Anton Sherwood says:

    I have two incompatible proposals:

    * Rather than a fixed number of seats on the Supreme Court, let one member be appointed every two years, i.e. once for every combination of President and Congress, excluding lame duck periods. (In fact, appointments have occurred about that often on average.) This avoids the jackpot effect and its associated cyclic panic — “This presidential election is exceptionally important because the entire Supreme Court could DIE during the coming term!” — at the cost (ho,hum) of allowing the size to fluctuate.

    * Abolish the Federal judiciary entirely. Bring cases under Federal law in State courts (as was once common practice), with up to two appeals to any other State. This would restore some of the beneficial tension between independent authorities that was promised in the Federalist Papers and destroyed in 1865.