A Court Too Supreme For Our Good

Yet there is still much that could be done to make the court far more democratic in tone and substance and to discourage justices from staying at their posts indefinitely. Congress, for instance, could cut the Supreme Court's budget until it agrees to allow cameras and audio equipment into all federal courtrooms, thus taking a modest step toward a healthier relationship with the public -- and toward a healthier measure of accountability.

But the most important and most dramatic step the president and Congress could take is to seek a commitment from a Supreme Court nominee that he or she will serve a sensibly limited period of time. The president could announce such a commitment when he introduces the candidate to the media. The Senate Judiciary Committee could ask the nominee about his views on longevity and also seek a commitment, even to a range of years. Any justice who hopes that with the passage of time such an exchange would be forgotten would likely be disappointed. Over time, a custom or expectation would develop. No law would be necessary to assure that justices act in the socially accepted fashion, just as no president served more than two terms for almost 150 years after Washington.

Roberts's nomination may be just the right moment to try this approach. He wrote favorably about term limits for federal judges in 1983. "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," he wrote in a memo addressing a proposed constitutional amendment to limit judges' terms. Roberts appreciated that the case for term limits was strengthened by the enormous power of the federal judiciary, which "today benefits from an insulation from political pressure even as it usurps the roles of the political branches."

In reconsidering lifetime service, it would make no sense to make an exception of the most powerful federal court of all. So it would be fair to ask Roberts whether he would be prepared to commit to a term shorter than a lifetime, set by some consideration other than personal preference. The question does not call for "prejudging" a particular constitutional issue, and so does not justify the standard evasive maneuver. The answer he offered would be telling, particularly in light of his previous views on the subject.

It is long past time that the media, the Congress and the executive branch act to remind the court, and those who would serve on it, of its position in our governmental scheme; to affirm that the public has a strong and legitimate interest in how the court behaves; and to demand the transparency, accountability and respect for limits that are a hallmark of powerful public institutions in our democracy.

Congress can start with a simple question.

Author's e-mail: RBauer@perkinscoie.com

Robert Bauer practices political law in the Washington office of Perkins Coie and writes on the subject at www.moresoftmoneyhardlaw.com.