Pat Boone
Monday, Aug. 8, 2005

Still fresh in our memories, momentous choices that had to be made one way or the other, and without delay, were simply awful for those on the losing side. The Bush v. Gore decision became emblematic of the arbitrary confiscation of the presidency or, depending on your sympathy, of the grown-ups finally doing the constitutional.

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Awful, and dispiriting, for a lot of us was the failure by the courts (both the "lower" and the Supreme) to err on the side of preserving Terri Schiavo's right to life at least in observance of an interim for more aggressive fact-checking.

In terms of both the proportion of the citizenry and the intensity of their outrage, Americans seem now to possess the worst distrust they have ever had in the Supreme Court to be the vital component of good government that it's supposed to be. A bright spot in this whole sorry picture may be the increased chance for reforms of the judicial branch.

Since reforming the judiciary brings to mind amending the Constitution, many people will despair of the unlikelihood of crafting anything that can be seen through to final ratification. But constitutional amendment isn't the only way to get reform done. Lots of more learned individuals than I are increasingly urging reform simply through legislation.

A detailed proposal, "The Supreme Court Renewal Act: A Return to Basic Principles," authored by the former deans of the Duke and Cornell law schools, aims to limit Supreme Court members' service to eighteen years. Now publicly endorsed in principal by over fifty well-known and distinguished legal scholars, it creates a class of "senior justices" who would no longer hear cases but – in conformity with the Constitution's life tenure requirement – perform other federal judiciary duties.

"Unchecked power, the Founders correctly believed, has a tendency to produce a degree of hubris and arrogance among those who exercise that power," write the proposal's authors. Their aim is to remedy the growing concern that justices insulated for decades after their confirmation can lose touch with the surrounding society and erode the high court's popular legitimacy.

The Constitution is actually silent about the organization of the federal judiciary, except for specifying that there is to be "… one Supreme Court, and such inferior courts as the Congress may from time to time ordain and establish," and that federal judges shall hold their offices "during good behaviour" – meaning, until death or resignation.

When this formulation was ratified, "judicial review" of a law's constitutionality was not among the Supreme Court's powers, normal life expectancy hovered around forty years, and Supreme Court justices' duties included arduous horseback journeys away from the nation's capital to hear cases.

Now that the average length of service on the Supreme Court has gone from 15 years to something over a quarter century, and sad experience has demonstrated that a well-staffed Supreme Court justice can turn his chamber into a nursing home and "function" even after suffering such medical afflictions as serious deafness and mental dementia, life tenure for the justices seems absolutely an idea whose time has passed.

In our national experience, impeachment of a Supreme Court justice has become a remedy known only for its utter improbability. So, with life tenure guaranteed, there is an irresistible incentive for Supreme Court justices not to resign unless their successor will be appointed by a president whose judicial philosophy mirrors their own, and a corresponding incentive is strong for presidents to nominate younger replacement candidates, even if older ones are more ideally qualified.

If nominees would be hearing cases before the Supreme Court for no more than 18 years instead of a possible 35 or more, confirmation battles would become less routinely toxic than we now experience.

These days, we too often see how a haphazard judge can get a gleam in his eye and take a slap shot at a goal he deems worthy, and the next morning we're hearing that marriage has been redefined or a successful ballot initiative has been nullified, and we have a crisis on our hands. Final appeal to the Supreme Court can seem the only way out of it, but we shudder to contemplate the finality and the larger implications if the decision goes against the authentically constitutional.

A fundamental problem with today's courts comes when they do legislative work instead of judicial. New laws and policies are supposed to come from elected representatives of the people; courts are only supposed to apply these to individual cases.

When legislative work seems to get done not in Congress but in the Supreme Court, as it did in the instantly infamous Kelo v. New London "takings" decision only weeks ago, one thing that makes dealing with its outcome seem the more painful is to hear U.S. senators bray about the importance of not reversing high court precedents.

How convenient it must be for some senators if Supreme Court precedent is deemed to rank right up there with constitutional text, so that passing legislation is not even necessary! In truth, the Supreme Court indeed revisiting its older rulings is explicitly how it has historically done some of its most important work.

We the People have a duty to preserve our founders' idealized division of powers between legislative and judicial functions in our government. Under this duty, assuring fully justifiable confidence in the collective character of the Supreme Court, robust and regularly renewable, is essential.

Some dedicated constitutional scholars have done a job here. This kind of achievable reform can't remain just something "they" are thinking about. The time for it to become something we are thinking about is now.

Send your comments on this article to Pat Boone.

Editor's note:
Rush Limbaugh Says the War for the Court Has Begun! Find Out Details – Click Here Now
Terri Schiavo – Mark Fuhrman Investigates – Go Here Now
David McCullough: God Saved America in 1776. Read It – Click Here