Politicians and journalists seem to agree that one of the major issues in this presidential campaign is the future of the Supreme Court. Given the age of those who sit on the court, the man who wins the election is likely to make an unusually large number of appointments. And so it is said that the next election is crucial.
These political experts are surely right about one thing: a different set of judges will mean a different interpretation of the Constitution. Picking a judge is not like buying a Coke, for which one bottle is like the next; different judges will sometimes reach different results in the same case. If these differences were modest, there would be no cause for alarm. However, those who are sounding the alarm are convinced that the relevant differences are not modest.
If I understand them correctly, the Mondale supporters are appalled with the judicial record of William Rehnquist and do not wish him to be joined with others of like mind. Conversely, the Reagan supporters are appalled with the judicial career of William Brennan. I understand, and sympathize, but would go further. I think it appalling that Rehnquist might serve out 30 years; but I agree that it is appalling that Brennan might serve out 30 years himself. Pick your Bill: neither should have 30 years' opportunity to make his political ideology into law.
It is, of course, unfair to pick out these two for special criticism. Indeed, one could make the same observation about all who are currently members of the court. They are all, whether conservative or liberal, quite willing to declare that their view of good policy is a requirement of constitutional law.
It is also fair to say that this problem has been a recurrent problem in the Supreme Court, even though there have been some who fought against it. In the recent past, Hugo Black and John Harlan, in very different ways, and from quite opposed political philosophies, fought as best they could against this tendency. But they both retired in September 1971, and since that time, no one who sits on the court seems to be even trying, much less failing, in the attempt.
Hugo Black's son, in a short memoir of his father, wrote: "Hugo always had a special kinship with Justices Douglas, Frank Murphy, Wiley, Rutledge, Earl Warren, William Brennan, Arthur Goldberg and Thurgood Marshall, Justices who believed that the underprivileged should be protected. . . . Going by a code of social morality, Daddy would probably have agreed with these Justices on any particular case. But all of these men troubled him, although not in the same way as a John Marshall or a James Clark McReynolds, two of his symbols of reactionary conservatism, did. He would say, 'The Chief, Brennan, Bill Douglas, Arthur, Thurgood, are usually going to do the right thing. Sometimes they're too gullible, but they always mean well. . . . While they're around, we'll generally get just judgment. But when they're gone and we get a McReynolds type, he's free to let go with his bad sense of right and wrong. . . . We don't want this Court to get to be like one of these agencies -- one law when the Republicans are in and another when the Democrats are in.'
Justice Black was shrewdly aware of the political consequences. He thought that these decent men were foolishly providing political ammunition to their opponents. So when Richard Nixon won in 1968, in part by running against the Supreme Court on the platform of "law and order" and "strict construction," Black thought that his friends had played into Nixon's hands. His son quotes the father as saying, "He (Nixon) and his bunch are bad fellas . . . and the tragedy is, these truly great and good men like the Chief and Bill made it easier for 'em."
Hugo Black thought that these justices' unrestrained liberalism, by which they declared the politics of the moderate left to be constitutionally necessary, made for bad constitutional law. But he was even more shrewd than that, for he also saw that it would make for bad politics. And indeed, he seems to have been a good prophet; we see now that previously local issues, such as sex education in elementary school, seem central to national politics.
Is there any way that we can arrest this degeneration of our presidential politics? It is possible that the members of the court might wake up and realize how foolish they have been. But a humble understanding of lack of wisdom has long since departed from the marble palace, so more far-reaching remedies are required.
The solution is to limit a Supreme Court justice to a term of 10 or 15 years; one could leave him or her with life tenure in the judiciary, but simply limit the time that any individual could serve on the highest court.
The rationale of this proposal is obvious enough. Since the members of the court are determined to declare their politics to be the Constitution, even though they are not our elected representatives, we should try to limit the damage that any one of them can do. There are no members of the court who are representative of anything other than a fraction of our nation, and so a limitation of tenure would have consequence of limiting the harm of their nonrepresentative nature.
My use of the phrase "nonrepresentative" should not be misunderstood. I certainly realize that those who are members of the legislative and executive departments are themselves only imperfectly representative. So one could say that we have a nonrepresentative judiciary that interacts with other branches of government that are also nonrepresentative, although each of these branches is nonrepresentative in a different way.
If we are to pit the branches of government against each other, knowing that each is in its way nonrepresentative, then we must be cautious about giving any of them too great a sway. The whole scheme may be mad, but it is the height of folly to adopt such a scheme and then distort it so that it has no chance of working.
We have in recent years taken steps to reduce the pretentions of the presidency. The office still has too much power, but some moderate limitations have been imposed. I think it is now time for some moderate limitations on the power of the individuals who sit on the Supreme Court. There is some urgency to it, since their acts are corrupting our national politics in ways that seem to be deeply harmful.