The framers of the Constitution didn’t guarantee a whole lot of direct democracy. They required that the U.S. House be elected directly by the people. The members of the U.S. Senate, according to the original Constitution, would be chosen by the state Legislatures. Of course the legislators would (with variances from state to state) be chosen by the people, so the senators were once removed from democratic accountability. And that was changed anyway, in 1913, by the 17th Amendment, providing for direct election of senators.
According to the original Constitution (and, technically, this is still the case), the president was to be chosen by one of two methods, neither requiring a popular vote. The states (by whatever means they chose, and in the early years many states did not hold a popular vote) would appoint electors. The electors would vote for president. If any candidate received a majority of the electoral votes, he would become president. If not, the choice of president (this is still on the books, although it has happened only twice and not since 1824) would be thrown into the U.S. House.
Then there’s the third branch, the judiciary, headed by “one Supreme Court ,” whose powers “shall extend to all Cases, in Law and Equity, arising under this Constitution.”
It’s curious (or do I mean obnoxious) to note that the Constitution does not explicitly state that the Supreme Court can overrule the Congress and/or the president with regard to which laws are “unconstitutional.” That word appears nowhere in the text of the Constitution. From Madison’s note of the deliberations of the framers, it seems likely that they had something along those lines in mind, but it is not a power explicitly granted to the judiciary and wasn’t really established until later. To the degree that deciding which laws are constitutional would become the most important function of the Supreme Court, the Framers likewise never suggested, and certainly didn’t mention in the Constitution, that the interpretations of the words they wrote must be guided by some future judicial seer’s ability to divine their “original intent” behind their word choices. That all came later.
The Constitution also did not set the size of the court and it has, over history, been larger and small than now. But it has been a nine-justice court since 1869. (We’ll save a discussion of FDR’s famed court-packing scheme for another day.)
Two things have never changed: 1. When a vacancy occurs, a replacement is nominated by the president, subject to confirmation by the Senate; and 2. The justices “shall hold their offices during good behavior,” which means they can serve until they die, decide to retire or are impeached for bad behavior. (No justice has been impeached since 1804 and even that one wasn’t removed by the Senate.)
Worried about corruption
The framers worried a lot about corruption and felt that the life tenure of federal judges and justices would ensure their independence. A lot of things have changed since then. The framers were hoping that U.S. politics could somehow occur without parties or partisanship. But that turned out very quickly to be a pipe dream.
The framers didn’t have much basis to foresee the kind of partisan/ideological cleavage over policy that would overtake not only the appointment and confirmation of justices, but the work that the justices do in deciding titanic “Case, in Law and Equity, arising under this Constitution.” They probably weren’t thinking that with increases in life expectancy, a Supreme Court justice might serve 30 or, in the case of longevity-record-holder William O. Douglas, 36 and a half years. They certainly weren’t thinking that the issue of abortion would become not only a Supreme Court issue but the litmus test that would determine who was and – depending on the political party of the president — wasn’t qualified to serve on the Supreme bench.
The language of Article III establishing the Supreme Court and establishing life tenure has never been amended. But around it has developed a system by which recent presidents have learned to appoint young justices, to increase the chance of the 30-plus-year tenure and the justices have learned to time their retirements largely – to the degree they swing it — on the basis of the party that occupies the White House and, when they reach a certain age, to hang on until the right party takes (Oval) office. And great matters of law and politics hang on the ability of justices and the presidents to guess right on those questions.
So, at present, the oldest justice, Clinton-appointee Ruth Bader Ginsberg, who turned 79 in March, and who is a cancer survivor, has been criticized by some for not retiring a year or two ago because there is no guarantee that Barack Obama will be reelected and she might not be able to hang on through a Republican administration.
And now we have the biggest Supreme Court case in decades, which purports to be about the limits of the power the framers delegated to the Congress, but is also about whether millions of Americans will have health insurance.
And it will be decided by two justices (Antonin Scalia and Anthony Kennedy) appointed by Ronald Reagan, one (Clarence Thomas) by George H.W. Bush, two (Ginsberg and Stephen Breyer) by Bill Clinton, two (Chief Justice John Roberts and Associate Justice Samuel Alito) by George W. Bush and two (Sonia Sotomayor and Elena Kagan) appointed by the current incumbent, President Obama.
Now Ronald Reagan twice received a mandate from the people to exercise the powers of the presidency, but he last received it in November of 1984. This is 2012. His two appointees (who have, in some sense, the votes to swing most close cases one way or the other and almost certainly have that power in the current big health care case) have democratic legitimacy – in the sense of having been appointed by someone elected by the people – that is 28 years out of date.
It seems likely that this diatribe/tour-of-the-Constitution will be taken as sour grapes by a liberal who fears that the health care law will be struck down and has decided to vent spleen at the poor old framers. In fact, I had been working on this and other similar diatribes/tours-of-the-Constitution for an occasional series that I hope to produce before Election Day. So I moved it up and here it is.
But, for the record, the idea that the life tenure for Supreme Court justices has become a problem, for some of the reason cited above, is not new and certainly not original to me. Many of those who agree that this is a problem have tended to congregate around a proposal for Supreme Court appointments that would last for 18 years. With nine justices, one would rotate off every two years. Every president would be guaranteed of appointing a couple and the rotation would be freed from the vagaries or death, illness, disgrace or (as in the recent case of Justice David Souter) a justice who had just had a bellyful of Washington.
In an anthology of essays by Constitution scholars about the dumbest things in the Great Charter, Professor L.A. Powe, Jr. of the University of Texas Law School, devoted his chapter to the issue of life tenure. He endorsed the 18-year limit and closed his essay thus:
Eighteen years is long enough to do the job and then do it well and to guarantee independence from the elected branch, while short enough to avoid the unseemly problems that life tenure creates.
(Powe, by the way, clerked for Justice Douglas, who stayed on the court until after he was incontinent and wheelchair bound.)
Stuart Taylor, Jr., the veteran Supreme Court reporter, listed the case against life tenure in this short, lively Atlantic piece, which includes wonderful data on how much longer and older recent justices are staying on the court, compared to the historical record. In case you don’t click through, here are the bullet items on his list of the “subtle but serious” problems associated with the lifetime appointment of justice:
Decrepitude, Intellectual autopilot, Hubristic complacency, Unaccountability, Randomness, Uglier confirmation battles, Eroded legitimacy, Diminished productivity.