[What if lifetime tenure, rather than raising the barriers to
corruption, makes it easier to influence the court by giving
interested parties the time and space to operate in an era when wealth
has an almost unbreakable grip on our politics? ]
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THE CASE FOR SUPREME COURT TERM LIMITS JUST GOT A LOT BETTER  
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Jamelle Bouie
November 22, 2022
New York Times
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_ What if lifetime tenure, rather than raising the barriers to
corruption, makes it easier to influence the court by giving
interested parties the time and space to operate in an era when wealth
has an almost unbreakable grip on our politics? _

Sam Alito - Jurisimprudence, by DonkeyHotey (CC BY 2.0)

 

The most striking detail in the recent investigation
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The New York Times into another potential Supreme Court breach is not
the evidence that Justice Samuel Alito or his wife may have leaked
information to conservative friends in 2014 about the outcome of
Burwell v. Hobby Lobby Stores, which extended “religious liberty”
to the actions of family-owned corporations.

No, the most striking detail is the extent to which a number of
Republican justices, Alito included, appear to have been the targets
of a sophisticated and well-funded influence operation designed to
notch as many legal and constitutional victories for moneyed and
conservative interests as the justices were willing to give.

My colleagues in the newsroom, Jodi Kantor and Jo Becker, describe a
kind of revolving door, where wealthy donors to conservative causes
invite justices to meals, vacation homes and private clubs; where they
contribute money to the Supreme Court Historical Society for the
purpose of meeting with and influencing the justices; and where the
former head of one such influence operation, Faith and Action, went as
far as to purchase a building across the street from the court so that
he could cultivate the people who worked there.

Alito denies the allegation that he divulged any information on the
court’s proceedings, telling The Times that the claim that friends
of his were “told the outcome of the decision in the Hobby Lobby
case, or the authorship of the opinion of the court, by me or my wife,
is completely false.” Alito also denied the accusation to The
Washington Post
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similar terms.

The framers of the Constitution wanted an independent judiciary —
strong enough to resist corruption as well as the influence of public
opinion. As such, federal judges enjoy tenure during “good
behavior.” Barring impeachment and conviction, they cannot be
removed.

But what if lifetime tenure, rather than leading judges away from
temptation, makes it easier to tempt them? In an era in which the
Supreme Court is as powerful as it has ever been — and which, not
coincidentally, the wealthiest Americans have an almost unbreakable
grip on our politics — what if lifetime tenure, rather than raising
the barriers to corruption, makes it easier to influence the court by
giving interested parties the time and space to operate? And beyond
the question of undue influence, what if lifetime tenure works too
well to sever the court from the public, rendering it both
unaccountable and dangerous to the popular foundations of American
government?

Lifetime tenure for federal judges was a real innovation in American
government. Most states were much less keen to give judges near-total
independence from the public at large. In some states, judges were
appointed to fixed terms; in others, they were on annual contracts to
be renewed at the discretion of the legislature. And still other
states gave their legislature the power to remove judges from the
bench for any reason.

Much of this flowed from the conventional wisdom, among
Anglo-Americans in the earliest years of the Republic, that all public
officials should be as responsive to the people as was possible.

The American Revolution had convinced many ordinary citizens, the
historian Terry Bouton notes in an essay for the volume
“Revolutionary Founders
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Rebels, Radicals, and Reformers in the Making of the Nation,” that
they had “a right to monitor government, to shape policy, and to
regulate government if they believed their leaders were not responding
to the popular will.”

In terms of institutions, and the structure of political
representation, this meant short terms of office (delegates to the
Confederation Congress served for one year), binding instructions for
lawmakers (so that they could not act too independently of their
communities) and mandatory “rotation,” or term limits.

Mandatory rotation was especially critical. “Elections, especially
of representatives and counsellors, should be annual, there not being
in the whole circle of the sciences a maxim more infallible than this,
‘where annual elections end, there slavery begins,’” John
Adams wrote
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1776, as British North America erupted into open conflict. “These
great men, in this respect, should be one a year—‘Like bubbles on
the sea of matter borne, They rise, they break, and to that sea
return.’ ”

Most state constitutions of the era made some provision for mandatory
rotation. The Pennsylvania Constitution of 1776, for example, deemed
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essential to preventing “an inconvenient aristocracy of entrenched
officials.” The Maryland Declaration of Rights, written that same
year, required mandatory rotation of the executive, stating that “a
long continuance in the first executive departments of power or trust,
is dangerous to liberty; a rotation, therefore, in those departments,
is one of the best securities of permanent freedom.” And under the
Articles of Confederation, no person could serve as a delegate to
Congress “for more than three years in any term of six years.”

Despite this consensus — so strong that even the more
aristocratically inclined Alexander Hamilton endorsed it in a 1782
congressional committee report — there is no provision for anything
like mandatory rotation in the federal Constitution.

What happened?

Some of it was practical. James Madison had also endorsed mandatory
rotation in that 1782 report, but between then and 1787 he had a
change of heart on the question, as a result of instability in the
fragile Confederation government.

According to the legal scholar Michael J. Klarman, Madison was worried
that mandatory rotation was producing “a change in the federal
councils not favorable to those catholic arrangements on which the
harmony and stability of the union must greatly depend.” Madison
also observed that “experience constantly teaches that new members
of a public body do not feel the necessary respect or responsibility
for the acts of their predecessors, and that a change of members and
of circumstances often proves fatal to consistency and stability of
public measures.”

Some of it was ideological. The Constitution was written
to _restrain _democratic energy and popular unrest in the American
republic. The _point _was to put substantial distance between
federal officers and elected officials and the people they were
supposed to serve.

And some of it, among those delegates who backed rotation in theory,
was probably a miscalculation. Mandatory rotation was still the norm
in most states. The Philadelphia delegates might have assumed that
this would also be the norm in the new national government, even
without explicit mention in the Constitution. They were wrong. The
United States has mostly moved away from the expectation of mandatory
rotation, with many lawmakers and judges serving long terms in office.

There is much to be said for the stability and continuity — and in
the modern era, the expertise and skill — that comes with serving in
office or on the bench for long periods of time. And yet, the
Revolutionary generation had a point worth considering. Long tenure
— and in the case of judges, permanent tenure — can go beyond
independence to breed a kind of arrogance and contempt for the public.

Set aside the issue of Supreme Court leaks and we see this with
Justice Alito himself, who has repeatedly gone to public forums
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chastise, even mock, his liberal critics, as if he owes nothing to
them or the people they represent.

Most Americans today support Supreme Court term limits
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Their reasons vary, but one of the more popular ones is that term
limits can help lower the temperature of confirmation battles and
reduce the nearly existential stakes of any given appointment.

But looking back to early America, I think there is a better reason to
want to pull the judiciary, and the Supreme Court, a little closer to
the people. As the antifederalist writer Brutus observed
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the midst of the battle to ratify the Constitution, an independent
judiciary of this strength, power and lack of accountability is
“altogether unprecedented in a free country.”

“This power in the judicial,” Brutus warned, “will enable them
to mould the government, into almost any shape they please.”

_Jamelle Bouie became a New York Times Opinion columnist in 2019.
Before that he was the chief political correspondent for Slate
magazine. He is based in Charlottesville, Va., and
Washington. @jbouie [[link removed]]_

_Follow The New York Times Opinion section on Facebook
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* Supreme Court
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* Money in Politics
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* corruption
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* Samuel Alito
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