Reading the very much liberal New Yorker on a regular basis, I saw the title “Rick Perry’s Good Idea” and expected snark. And there was a little bit, mostly about his impossible-to-satire failed campaign. But the “good idea” referenced in the title really does seem like a good idea, at least given the thought I’ve put into it so far. There are probably downsides and pitfalls I haven’t considered. But I really think his proposal could restore functionality to the Supreme Court, and maybe reduce some of the partisanship.
Fortunately, the op ed piece is available online.
Here’s an excerpt with an outline of the idea.
Yet there was more to Perry’s campaign than blunders. It was also a campaign of “ideas.” Few of them were good, alas. For example, reducing the salaries of members of Congress by half, to eighty-seven thousand dollars a year, is not a good idea. Neither is a tax cut that would net the richest one per cent more than five thousand dollars a week and the unrichest twenty per cent less than two dollars and fifty cents. Nor is there much to be said for reinvading Iraq, reinstituting torture, or unconditionally supporting new and bigger Israeli settlements in the West Bank. Yet at least one idea Perry embraced was, and is, very good indeed. It involves the Supreme Court. The Governor may be a little shaky about the Court’s names and numbers, but he knows what to do about it. Here’s the proposal, straight from his now moribund campaign Web site:
A Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine Justices would be replaced in order of seniority every other year. This would be a prospective proposal, and would be applied to future judges only. Doing this would move the court closer to the people by ensuring that every President would have the opportunity to replace two Justices per term, and that no court could stretch its ideology over multiple generations. Further, this reform would maintain judicial independence, but instill regularity to the nominations process, discourage Justices from choosing a retirement date based on politics, and will stop the ever-increasing tenure of Justices.
This ingenious idea has been kicking around in legal circles for decades. It tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy. Justices would still get lifetime appointments. After their eighteen years with the Supremes, they could choose to serve on other federal courts, bringing their experience and, in some cases, their wisdom to the appellate bench. Even if they didn’t exercise that option, though, their salaries would continue for life. If a Justice died or retired before his or her eighteen years were up, a substitute would be appointed via the usual process—Presidential nomination, Senate confirmation—to serve out the remainder. The interim Justice would not be eligible for reappointment to the Supreme Court, but he or she would have the same sweet post-Court deal. And what lawyer wouldn’t jump at the chance to be a Justice of the highest of high courts, if only for a year?
There’s more in the article.
Conservatives might resist the idea right now, but in 10 years they might be singing a different tune.
There are some downsides. Maybe there would be more overturning of previous decisions, but then maybe courts, knowing that there’s a little more fluidity, would be more cognizant of making decisions which will last and therefor less partisan.
What to you think?