To the Editor:
Re “Bring the Justices Back to Earth,” by Paul D. Carrington (Op-Ed, April 10), proposing new appointments to the Supreme Court every two years:
The framers were well aware of the arguments for and against life tenure for judges because state practices offered a variety of approaches to structuring judicial power. They expressly and unequivocally chose the life tenure route.
This decision did not mean that they felt judges should be unconstrained. Rather, they believed, as Alexander Hamilton wrote in “The Federalist,” that impeachment is a “complete security” against “deliberate usurpations” of power by federal judges.
In short, the system proposed by Professor Carrington that, he claims, would “capture the benefits of term limits” without the need to amend the Constitution is both unnecessary and a threat to judicial independence.
SCOTT DOUGLAS GERBER
Ada, Ohio, April 10, 2012
The writer is a professor of law at Ohio Northern University and the author of “A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787.”
To the Editor:
The average life expectancy in this country is twice as long as when the first Supreme Court justices began their tenure in 1789. Of those appointed to that first court, only one sat for a decade; the others served for nine years or less.
Of today’s bench, Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas are into their third decade on the highest court. The four most recent appointees, Elena Kagan, John G. Roberts Jr., Samuel A. Alito Jr. and Sonia Sotomayor, were all born in the 1950s or 1960s. The tenure of some or all of this foursome may be in its infancy. Clearly, the term lengths contemplated by the framers of the Constitution were vastly different from the reality of the present world.
If the reasonable expectation in the late 1700s was that the court sit unimpeded by political tensions, what we have witnessed in recent years, with Bush v. Gore and Citizens United, is very far from that ideal. With the pending ruling on the Affordable Care Act, I fear this trend will continue, with devastating results.
It is past time that we reform this system, where justices rule as virtual dictators, year after year, free from oversight or ethical restraint. We should apply 21st-century reality to an 18th-century document and restrict how long any of these justices can reign.
ROBERT S. NUSSBAUM
Fort Lee, N.J., April 10, 2012
To the Editor:
Paul D. Carrington’s proposal to revise the membership of the Supreme Court smacks of President Franklin D. Roosevelt’s plan to pack the court.
If the court does uphold the Affordable Care Act, will Mr. Carrington continue to champion his plan?
Wabash, Ind., April 10, 2012
Note from KBJ: Robert Nussbaum is a piece of work. When the Supreme Court rules in a way he dislikes, it's because the Court is political. Perhaps the Court should consult Nussbaum before it rules. That way, it will never be political.