Home / Judicial Term Limits and Rare Calls For Lochnerism

Judicial Term Limits and Rare Calls For Lochnerism


Readers of this blog will know that I approve of the primary objective of this group of scholars and litigators, which is calling for the kind of judicial term limits that pretty much every other constitutional democracy has (and that the United States would probably have had if the initial unattractiveness of jobs in the federal judiciary didn’t make them superfluous.) Rather than reiterate my arguments, I thought I would have some fun with TigerHawk’s outraged response:

  • I would respond to TigerHawk’s arguments on the merits, except that he doesn’t actually have any arguments on the merits. Rather, he simply dislikes the proposal because of what he considers the short-term political consequences to be. And the thing is, because sitting justices could only be given incentives to retire, it likely wouldn’t even have these effects; Obama’s justices would be term-limited while Scalia, Thomas et al. would stay on the Court until they resigned.
  • He fumes that “It is not hard to imagine why these “legal experts” did not make this proposal last year.” This projection of opportunistic partisanship is quite a serious charge, and one would think that he would make at least a cursory attempt to look into the charge of hyporcisy before he made it. I can’t find a list of all the signatories, so maybe someone has changed position on the issue in the last few months. However, the organizer of the letter wrote a book favoring judicial term limits…that came out in 2006. Another scholar quoted in the article, Eric Posner, is a conservative who recently wrote a book defending Bush’s expansive conception of executive power during wartime. As far as I can tell, the only person here viewing tern limits exclusively through the lens of short-term partisan politics is TigerHawk.
  • I do have to admire the candor of his, ah, eccentric call for the Supreme Court to return to its thoroughly-discredited Lochner-era doctrines: “The sainted FDR intimidated the Court into abandoning “substantive due process” — the only real protection that rights in property and contract had against legislative power run amok.” Leaving aside the facts 1)that most historians don’t buy the intimidation narrative (Owen Roberts had already decided to cast the fifth vote to sustain major New Deal programs before the Court-packing plan was even announced, although the decisions came out later) and 2)most of the disputes were delegation and commerce clause cases rather than “liberty of contract” cases, the scare quotes around “substantive due process” seems to concede that the Four Horesmen had no particular constitutional warrant for arbitrarily deciding that economic policies they disagreed with were unconstitutional. Somehow, I’m guessing that TigerHawk’s attempt to claim that we should kind of pretend that the Fourteenth Amendment does enact Mr. Herbert Spencer’s Social Statics is not going to find a wide audience, particularly during the Bush Depression.
  • To summarize his historical argument, FDR proposed something that was unquestionably authorized by the text of the Constitution, in order to prevent national policy from being obstructed by constitutional arguments so dubious that no Supreme Court justice of any stripe has advanced them by many decades. This proves that FDR was insufficiently fastidious about the Constitution. And also provides an argument against judicial term limits because…well, I don’t really see the connection.

Frankly, the quality of arguments against judicial term limits has to be considered one of the best points in their favor.

…given TigerHawk’s graciousness in response, I’ll withdraw the “fuming” charge…

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