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Limit U.S. Supreme Court terms
Wednesday, February 28, 2001
By MARIANNE MEANS
WASHINGTON -- Having created a president by distorting its own previous judicial reasoning, the Supreme Court is heady with power.
The justices' latest outrage was to deny the right of the federal government to enforce the Americans with Disabilities Act by immunizing states from discrimination suits brought under the law. Congress, the court said, did not have the constitutional authority to intervene in the employment contracts of the sovereign states except in rare, strictly defined circumstances.
The high bench blithely dismissed a well-established, long record of mistreatment of the disabled by state and local government agencies as behavior well within "rational" budget-making priorities. The court held that the act, considered the most important civil rights law in a quarter-century, interfered with an employer's freedom to force workers to use "existing facilities." In other words, it's a costly nuisance to build wheelchair ramps or widen toilet doors.
Obviously, this decision was more about penny-pinching than helping the disabled stay in the job mainstream. It also continued the court's recent campaign to reduce congressional power over the rights of states.
In ruling for George W. Bush, the conservative majority of the court found that the Republican-controlled Florida Legislature outranked the Democratic-dominated Florida Supreme Court. But now that the court's preferred candidate is safely in the White House, the 5-4 majority has returned to its theme of upholding the superiority of state courts.
More than 100 years ago, Lord Acton astutely observed that while power tends to corrupt, "absolute power corrupts absolutely." That's what's wrong with the Supreme Court today.
Its credibility has been strained by its presidential ruling. But instead of exercising the judicial restraint that conservatives always profess to admire, the Supreme Court majority has become unabashedly arrogant.
There are several theories on why this has happened.
One is that the conservatives are convinced their numbers will soon be reinforced by Bush appointees of a similar ideological ilk, after which they will have virtually unfettered freedom to defy Congress and any other rival institution.
Another theory is that the ultraconservative Justice Antonin Scalia is terrifying the less ideological justices into submission. Scalia's written opinions are often sarcastic and insulting, bitterly scoffing at secular views that do not conform to his own religiously influenced concepts.
A third theory is that the justices are so isolated they do not realize that a struggle for power with Congress can create a backlash against them. Respect is not necessarily automatic, even for the wearers of black robes.
The real problem here is the smugness born of lifetime tenure. Basically, no federal judge can be removed from office once confirmed, except for serious misconduct or crime.
Scalia and the others are secure in the knowledge they can do pretty much what they please, without fear of retaliation. They were given lifetime jobs to protect them against political pressure. But they have abused the privilege. It is time we changed that.
Officials of the legislative and executive branches operate within an electoral system in which their performance is regularly evaluated. The Supreme Court and the lower federal courts should have limited terms too. Voters should be allowed to approve or reject them, as is now the case with state courts. Or they should be routinely retired after a specific period so that an incumbent president may appoint someone new.
Congress should consider a constitutional amendment to end lifetime tenure. It would require ratification by three fourths of the states, a difficult but not impossible political hurdle.
Thomas Jefferson worried that the Supreme Court would become dangerous some day, trumping the other two branches with its undemocratically secret ways.
In a letter to a judge in 1821, Jefferson wrote,"The great object of my fear is the federal judiciary. . . . that body, like gravity, ever-acting with noiseless foot and unalarming advances, gaining ground step by step . . . "
Later, he also wrote, "The first remedy for abuse is appointment for a term of years only, with a capacity for re-appointment if conduct (is) approved . . .
"We already see that power installed for life responds to no authority (for impeachment is not even a scarecrow) advancing with a noiseless and steady pace . . . Let the future appointment of judges be for four or six years, removable by the President and Senate."
Jefferson, as on so many other issues, was ahead of his time. But wise, oh so wise.
Marianne Means is Washington, D.C., columnist with Hearst Newspapers. Copyright 2001 Hearst Newspapers. She can be reached at 202-298-6920 and means@hearstdc.com.
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