Some thoughts on the SCOTUS

I don't often agree with anything Joe Gandelman's guest poster, Greg Piper, writes but in his post this morning, John Roberts to Supreme Court: Die or Leave, he does say some things that I can't really disagree with.

I know the notion of an eternally-independent judiciary is an attractive concept to most people, who have little love for our eternally squabbling and risible politicians. Reason even ran a libertarian ode to judicial activism in its July issue. But about the only remaining divide between the High Court and Congress now is the justices never face the voters. They squabble just as much, create bizarre "tests" to determine constitutionality just as suspect as anything Congress has done, and sometimes explicitly reject Congress' own explanation of what its laws mean. This shouldn't be a conservative/liberal dispute, since the Rehnquist court has often stretched policy issues like crime and due process beyond congressional authorization.

We progressive had no objection to these judicial activities when they were going in our favor. Those days are over and the "activist" judges are wingnuts from the right like Scalia. One suggestion by none other than Supreme Court nominee John Roberts was a fixed term.

"Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence," Mr. Roberts wrote. "It would also provide a more regular and greater degree of turnover among the judges."

He went on to argue that lifetime tenure was more defensible when judges limited themselves to strict application of the Constitution. When judges strayed into social policy-making, he said, they made a case for limited terms. "The federal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches," he said.

The US Constitution is not a sacred document. Not only have realities changed but the meaning of words has changed over 200 plus years making re-interpretation necessary. The decisions of the Supreme Court are inevitably based on politics and public opinion. With lifetime appointments the politics and opinions of the country change much faster than the Supreme Court. Perhaps a limit is something to consider and it should be a non-partisan decision.