This is what is great about it being a lifetime appointment.
There is literally nothing else for these folks to strive for except being well regarded in the history books, so they can finally do what they regard as the best thing to do.
There is literally nothing else for these folks to strive for except being well regarded in the history books, so they can finally do what they regard as the best thing to do.
Perhaps in the "old" days when Justices had the feelings you're attributing it might be true but now in the current political situation ideologues are who are sought out to appoint and they care only they're well regarded by their own political persuasion.
I'd be surprised to discover any alternatives to this constraint.
Why would they care about that? They already have the job for life. They don’t need to please their audience any more. They’re free to act on principle.
And beyond that, there's a more fundamental issue: people like this are chosen for these roles because of their fervent, polarized political beliefs. Their principles, if they have any, are either aligned with or overcome by the politics. Their willingness to listen to reason and step outside their bubble is limited, unless doing so lines up with their politics.
I certainly hope current SCOTUS justices have a solid grasp of history and what happened to the last SCOTUS justice who acted in a manner you're suggesting. And this is an institution that (also, as history would have it) does a pretty good job giving a wide berth to precedent.
> Are Supreme Court justices swayed by the political environment that surrounds them? Most people think "yes," and they point to the influence of the general public and the other branches of government on the Court. It is not that simple, however.
> As the eminent law and politics scholars Neal Devins and Lawrence Baum show in The Company They Keep, justices today are reacting far more to subtle social forces in their own elite legal world than to pressure from the other branches of government or mass public opinion. In particular, the authors draw from social psychology research to show why Justices are apt to follow the lead of the elite social networks that they are a part of.
Sometimes, having an old guy say "whoa, slow down! That's a bad idea" is a good idea.
Or I don't know.. money, bribes, favoritism?
I think that the terms don't actually matter much. The real problem with SCOTUS is that it represents extreme concentration of political power in our system that doesn't have any direct checks on it. Then you have stare decisis, which makes it so much harder to overturn decisions - so even indirect checks are limited. That's why its lack of accountability (e.g. term limits) is such a big problem. It's also why it was inevitable for it to become more partisan over time - having a partisan majority on the court is basically the equivalent of having nukes, and once one side starts moving in that direction, the other will inevitably follow. And now we're at the point where many people vote for president solely on the basis of what kind of judges they will appoint - and it's not even an irrational approach.
So I think that it's better to make the court less powerful, such that those appointments are not quite so important. One particular idea that I had is to abandon simple majorities as the way to decide matters on the court, and run it more like a jury - basically, the only way to declare something to be definitely unconstitutional, or definitely constitutional, should be by unanimous decision, or perhaps a strong supermajority (say 7 out of 9?). If a panel of people who are specifically chosen as legal experts cannot agree what the Constitution means with respect to something, I think the most sensible interpretation is that it's ambiguous - but then going with a simple majority would be very wrong.
Instead, if the judges cannot agree, this should automatically trigger a constitutional amendment process. Basically, have them all write opinions explaining why they cannot agree with their opponents on the court, and what changes to the Constitution would be necessary before they can agree. Submit all those changes as proposals for ratification, using the normal process, except that only one can be ratified, and that automatically rejects the other changes. If one of the amendments is ratified, that resolves the issue unambiguously and with an explicit rule for future cases like that. If none get ratified, then the lower court decision stands, but it does not set a precedent - the constitutional question remains open, and can be challenged again.
I would expect this to result in more unanimous or supermajority decisions with less extreme and more narrow effects, because the judges would be more likely to try to hammer out a compromise to cross the threshold.
It's unfortunate but having a stalemate is the best course to eliminate rash changes to government when there is a lot of divisiveness.
It's an appointment, so they would only have to convince the president. Or you can prevent reappointment at all.
That's how the Senate used to work, with state legislatures "electing" the senators.
That was replaced a hundred years ago with direct election of senators.
The big difficult, however, is how to make sure that a hostile senate wouldn't just block all nominations (which is the new norm). Some people like Calabresi have suggested that the president and everyone in the senate would be denied all compensation (IIRC even from private parties) until the seat is filled. I don't think that's a workable idea though.
Most presidents are reelected to two terms, and so if judicial terms were offset from Presidential terms by a year, they'd have:
At 0 years, 0 justices they appointed.
At 1 year, 3 justices.
At 3 years, 6 justices.
At 5-8 years (and up until 1 year into the next term), all 9 justices.
So most President get to completely stack the court, the effects just don't last as long—the judiciary becomes another weathervane political branch of government, because the two of those was too few.
(And I don't even want to consider the consequences of all those short time justices looking to their post-Court career while sitting on the bench.)
It does have to be justified based on existing law and this is important. But often, existing law only talks about broad principles or is contradictory, and judges are expected to fill in the details. In the case of the U.S. Constitution, these "details" can be really huge gaps.
This is what an appeals court justice does and their check and balance role on the other two branches of govt.
It's strange that the idea that judges shouldn't decide by (future) popularity gets downvoted. At times I don't understand this community at all. Is that a "I believe that my opinion will rule supreme in 20 years, so judges should submit to it now and just ignore the constitution"-thing?
I'm sure plenty of people who voted Hitler thought they were in the right side of history until they suddenly weren't. That's the unfortunate part of politics, you have to build a system around not trusting people.