I think the present system is so entrenched that the way out is not term limits. Both parties will resist their guy being termed out. Instead, why not subtract by addition? When any sitting Justice has spent X number of years on the bench, the president can appoint an additional Justice to the Court. I say appoint, so that the system can't be gamed by delay. Maybe give the Senate 90 days to hold hearings and advise, but not require consent, with the president allowed to decide whether to finalize the appointment after the 90 days.
Good point. I agree with your cogent analysis of the problem, but I don’t think term limits are the answer. American courts just have too much power. The Supreme Court, and now the lower courts, do not decide cases as much as make law. But to fix that, we would have to roll back the clock, a physical impossibility.
Like you, I clerked for a federal court judge (district court in my case, though he did sit by designation in circuit court once). But then I went to Japan where I studied Japanese law (in Japanese) and then worked for a Japanese law firm and then an American law firm's Tokyo office. I grew to like the way the Japanese supreme court works.
Japan is a civil law country, so the only source of law is the codes and statutes. There is no stare decisis. Even Japanese supreme court decisions are not binding on, but merely persuasive in, any court. Judges and justices simply decide cases, usually in brief opinions. (Though I have not worked in Japan for 30 years, and I hear things have changed some.)
The 15 supreme court justices are appointed by the Emperor, in theory, but he just selects whoever is nominated by the government. The public gets to vote on retention. There is a 70-year-old mandatory retirement age, and most who are appointed are in their 60s, so there is a lot of turnover. No one really knows, or cares, who is on the supreme court at any one time. It doesn't really matter.
The system works well. A lot better, in my opinion, than ours. But I can't see how to take away power from the supreme court in our country. I don't think term limits would make much, if any, difference. People would still game the system, just in different ways, since the supreme court would retain so much political power.
I agree that our courts are pretty powerful, although I don't know if there's an alternative given the balance of our institutions. With a more parliamentary based executive, there is more fluid lawmaking creating more checks. Without our more structured system, somebody really does need the power to police overstepping the Constitution by the other branches and I don't know who else could do it except an institution with some democratic legitimacy standing outside the system.
This idea would be a fantastic improvement for our republic.
I’m willing to bet that the founders did not expect Supreme Court justices to live and serve into their late 70s and 80s. As you said this one reform fixes a great many problems.
I think the present system is so entrenched that the way out is not term limits. Both parties will resist their guy being termed out. Instead, why not subtract by addition? When any sitting Justice has spent X number of years on the bench, the president can appoint an additional Justice to the Court. I say appoint, so that the system can't be gamed by delay. Maybe give the Senate 90 days to hold hearings and advise, but not require consent, with the president allowed to decide whether to finalize the appointment after the 90 days.
Good point. I agree with your cogent analysis of the problem, but I don’t think term limits are the answer. American courts just have too much power. The Supreme Court, and now the lower courts, do not decide cases as much as make law. But to fix that, we would have to roll back the clock, a physical impossibility.
Like you, I clerked for a federal court judge (district court in my case, though he did sit by designation in circuit court once). But then I went to Japan where I studied Japanese law (in Japanese) and then worked for a Japanese law firm and then an American law firm's Tokyo office. I grew to like the way the Japanese supreme court works.
Japan is a civil law country, so the only source of law is the codes and statutes. There is no stare decisis. Even Japanese supreme court decisions are not binding on, but merely persuasive in, any court. Judges and justices simply decide cases, usually in brief opinions. (Though I have not worked in Japan for 30 years, and I hear things have changed some.)
The 15 supreme court justices are appointed by the Emperor, in theory, but he just selects whoever is nominated by the government. The public gets to vote on retention. There is a 70-year-old mandatory retirement age, and most who are appointed are in their 60s, so there is a lot of turnover. No one really knows, or cares, who is on the supreme court at any one time. It doesn't really matter.
The system works well. A lot better, in my opinion, than ours. But I can't see how to take away power from the supreme court in our country. I don't think term limits would make much, if any, difference. People would still game the system, just in different ways, since the supreme court would retain so much political power.
I agree that our courts are pretty powerful, although I don't know if there's an alternative given the balance of our institutions. With a more parliamentary based executive, there is more fluid lawmaking creating more checks. Without our more structured system, somebody really does need the power to police overstepping the Constitution by the other branches and I don't know who else could do it except an institution with some democratic legitimacy standing outside the system.
This idea would be a fantastic improvement for our republic.
I’m willing to bet that the founders did not expect Supreme Court justices to live and serve into their late 70s and 80s. As you said this one reform fixes a great many problems.