What is to be done?

That’s the question being posed by dozens of irate readers in the wake of Supreme Court’s decision in the juvenile death penalty case. What can be done, our readers wonder, to prevent the Court from continuing to make policy based on the Justices’ personal views of what is right, as confirmed in some instances by “like-minded foreigners?”
The main thing that can done is to nominate and confirm judges who have clearly rejected the activist approach of robed masters like Justice Kennedy. But our readers are thinking in more fundamental terms. Is it possible formally to limit the Court’s power to overturn laws? Alternatively, can we find a way to make Supreme Court Justices more accountable?
As to the first prospect, here is what I wrote last July:

As the present coalition of liberal and “past their sell-by date” Justices renders incoherent mandates in field after field, the old question arises — where does the Court get the right to invalidate laws enacted through the democratic process. I don’t believe that the Constitution plainly vests final authority on these matters with the Court, nor does the right flow from the natural order of things. In my view, the Court has this right because, early on, it asserted it, and since then this arrangement has worked well enough, in the view of the public, that it hasn’t needed to be disturbed. Giving the Court the final say has produced results (albeit sometimes only at the last minute) that have been acceptable on the whole to the body politic. In other words, the Supreme Court gets to contribute in a big way because people think that, by and large, its contribution has been worthwhile.
It follows, I believe, that if Supreme Court jurisprudence becomes widely viewed as posing a serious impediment to our national security, economic welfare, or moral fabric, and if the Court fails to “switch in time,” it will be stripped of its right to the final say. As bad as many recent decisions have been, we are nowhere near that point, and I hope we never get there. But it could happen.

This remains my assessment. The handful of outrageous decision per term that come to the public’s attention is not enough to undermine the public’s willingness to tolerate the Court’s excessive authority. This is true for several reasons. First, we’re not that far removed from being a 50-50 country. Maybe we’re 53-47 now. This means that close to a majority may well be happy with most of the decisions that the rest of us find outrageous.
Second, most of the decisions aren’t viewed as that earth-shaking from a policy standpoint, even by people who disagree with them. This is not to say that they don’t have serious consequences. The defendant in the juvenile death penalty case took into account his belief that he would not be executed if he indulged his desire to murder. Now that the killer’s belief has been validated and become the law of the land, a few more people probably will be murdered based on a similar calculation. But these murders will occur away from the limelight, after ordinary people have forgotten all about the Court’s decision. It would take something as dramatic as a major act of terrorism by a detainee released due to a Supreme Court decision to shake the public’s willingness to tolerate the Supreme Court’s imperialism. As I said in July, let’s hope we never get to that point.
Third, the public believes that there is a self-correcting mechanism at play with respect to the Court. The Supreme Court is thought, in the words of Mr. Dooley, to follow the election returns. We were all taught that the Court during the 1930s eventually made its peace with the New Deal to avoid political fall-out. The Warren Court, far more ambitious and imperial than the present one, became the target of conservative attack in the 1960s and, after Nixon was elected on a platform of doing something about it, he was able to appoint four new Justices. Ford appointed a fifth during what would have been Nixon’s second term.
In reality, though, the self-correction theme is largely a myth. There is no evidence that the modern Court follows election returns, at least not American ones. And several developments have undercut the Court’s ability to transform itself through turnover. For one thing, today’s Justices will not retire. Being the national social and moral arbiter (or combating those who are) is too important. Moreover, as the Court’s importance has increased, presidents have tended to appoint younger Justices in the hope of maximizing the impact of their selections. For example, several excellent candidates to replace Chief Justice Rehnquist are thought to be at a major disadvantage because of their advanced age. Thus, at both the front and back ends, forces are conspiring to minimize high Court turnover.
This suggests the need for term limits, a less drastic approach than stripping the Court of power or trying to impeach particular Justices. Such an approach would encounter the objection that Justices must be free from political pressure when they make decisions. The objection has force, and should be dealt with by limiting Justices to one long term. With no possibility of being reappointed, they would have no incentive to curry favor. At the same time, we would not be stuck with them for life.
I stress, however, that even this fairly modest proposal will not gain traction in the current environment. Americans are reluctant to tamper with the processes of government, and properly so. The Supreme Court will have to cause much more harm than it is presently perceived to be causing before this type of reform will receive serious consideration.


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