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Save the Supreme Court: Impose Term Limits on Justices

October 5, 2018 in Economics

By Doug Bandow

Doug Bandow

The poison of vicious political partisanship infects virtually
every aspect of policy today. Judicial appointments, which a couple
decades ago resulted in overwhelming votes for well-qualified
nominees, have turned into brutal battles with no prisoners

Not only has the fight over the Kavanaugh nomination devolved
into a mud wrestling match. Congressional Democrats are now
threatening to continue the battle if Brett Kavanaugh is confirmed,
possibly pushing to impeach the new justice if they win control in
November. That would cause the GOP to retaliate, as it did when it
ended the filibuster against judicial appointments.

The ever more intense judicial contests in part reflect a
nastier and more partisan political environment. Even more
significant, however, is the increasing importance of the federal
judiciary and especially Supreme Court. While envisioned by
Alexander Hamilton as “the least dangerous branch” and
“the weakest of the three departments of power,”
intended to settle disputes rather than make policy, the judiciary
has turned into a quasi-legislature, where disappointed activists
turn if they lose political battles.

It needs to become “the
least dangerous branch” again.

That view of the courts predominates on the Left, for whom the
Constitution has virtually nothing to do with constitutional law.
The role of judges is to say what the law should be, not what it
is. What previous generations agreed to is irrelevant, a historical
footnote. A good jurist briefly mentions the nation’s
founding document while looking for ambiguous language. He or she
then claims to have discovered constitutional penumbras and
emanations after great effort. The opinion then justifies turning
the latest political zeitgeist into law. Jurisprudence is almost
entirely result-oriented, with judges expected to vote as if they
were legislators.

Abortion may be the touchstone issue. In 1980 Democrats
criticized presidential candidate Ronald Reagan and the GOP for
allegedly adopting a pro-life “litmus test.” Today, of
course, it is the Democrats who insist on absolute fealty to
Roe, a respect for precedent which overturned previous
widespread precedent. The political party which once was
scandalized by Republicans who wanted to know where judges stood on
the issue now demands to know where judges stand on the issue.

Hence the hysterical screaming over Kavanaugh’s nomination
well before the allegation of sexual assault — millions will
be at risk, Americans will be denied health care, thousands of
women will die from illicit abortions, and much, much more. Yet
Supreme Court justices do not practice medicine. Even a reversal of
Roe v. Wade would stop few abortions since many, and
certainly the most populous, states would leave the procedure
legal. And so on.

Although interest groups may be most responsible for the
transformation of the judiciary’s role, …read more

Source: OP-EDS