Why shouldn’t justices have term limits, appoint more?

Since the beginning of the nation, the United States Supreme Court has issued rulings that have raised eyebrows. 

From Marbury vs. Madison that established judicial review of all laws to determine their constitutionality to cases that determined the extent of slavery, from gun rights and commerce to striking down separate but equal in America’s schools, from Roe v. Wade to reversing it, the Supreme Court has been at the forefront of how America interprets the Constitution and how laws will be applied.

Just what is the role of the SCOTUS, and how has it changed over time?

The Constitution states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

The SCOTUS has had as few as five justices and as many as 10, but the number was fixed at nine in 1869 and has been that way ever since.

There have been threats over the years to “stack the court” to favor one political view over another, but they have all fallen short of actually trying to add justices to the court.

Most famously, Franklin Delano Roosevelt wanted to pack the court when many of his socialist initiatives during the Great Depression were overturned as unconstitutional.

But the threat had an impact on the court on key decisions that allowed the government to take a controlling interest in commerce which included barring a farmer from growing his own food.

Now in the lame duck portion of his presidency, Joe Biden is proposing an overhaul to the court including term limits in an effort to gain more political control over the SCOTUS.

Over time, the court has been both liberal and conservative.

The Warren court was known as the most liberal SCOTUS in history, and it operated that way from 1953 to 1969.

Many issues were decided by what many would consider to favor the political left. 

Even still, there were no calls to stack the court or limit its power.

Some believe the court is conservative today perhaps more so than it has been in 90 years.

That may be true, but that is the natural ebb and flow of the court itself. And having a liberal leaning court for about 90 years may have been problematic as well.

Appointees are not always reflective of the people who appoint them. Ronald Reagan appointed the first woman to the SCOTUS, Sandra Day O’Connor. But several times she sided with more liberal decisions.

Former Justice Antonin Scalia stated that a member of the court is not always happy with the decisions they have to make. Justices who have to support the Constitution, he said, sometimes vote against what they personally would prefer because that is the role of a justice.

That’s the importance of the lifetime appointment. There is no repercussion for doing the right thing rather than the popular thing.

The Constitution was not designed for popularity. After all, popularity needs no protection.

A recent interview with Justice Neil Gorsuch pointed out why the proposed changes to the court is more about popularity and majority rule rather than the protection of the individual rights.

According to Gorsuch, the independent judiciary “means that when you’re unpopular, you can get a fair hearing under the law and under the Constitution. If you’re in the majority, you don’t need judges and juries to hear you and protect your rights. You’re popular.”

According to Gorsuch, the judiciary is “there for the moments when, when the spotlight’s on you, when the government’s coming after you, and don’t you want a ferociously independent judge and a jury of your peers to make those decisions?”

If justices simply had to pick what was popular, we wouldn’t need them.

But justices don’t have that luxury. They have to make sure that a person who is being targeted by the government is protected from the majority.

The recent cases against Donald Trump are the result of a political judiciary. When prosecutorial candidates claim they are running for office to convict a person, and they will simply find some crime to complete their mission, courts are no longer protecting the rights of the minority, or the people, from the state. There is always an area of the country where a biased judge and jury can get a biased verdict.

But the SCOTUS rises above that. The rights of the minority are paramount to the tyranny of the majority.

Any effort to undermine the independence of the judiciary is an attempt to undermine the very fabric that makes the United States different from every other nation. It’s part of our legacy of exceptionalism.

Our SCOTUS is not concerned with the political winds of the day but can instead focus on the long term attempt to erode the fabric of liberty. 

The government constantly seeks to expand its own authority, and any time government is told no, it reacts in a very hostile way.

I have a recording of a local politician who once told the KBI the people need to be told no from time to time.

It’s the exact opposite. The people decide what is yes and what is no, and when the government or its minions try to subvert that effort, an independent SCOTUS can tie the hands of government and protect liberty.