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Supreme Court in the spotlight once again

Politics of justices, term system under scrutiny

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The U.S. Supreme Court typically makes it biggest splash at the end of a session, and this year was no different.

With recent rulings on health care, immigration and campaign contributions, the country's highest court has become the subject of conversations in the office, on late-night talk shows and everywhere in between.

"(The court is) at its peak of relevance," observed California Western School of Law professor Glenn Smith. "Just the example of the country and political leaders waiting with bated breath on the health care decision, and the many controversial issues on the agenda, make it more relevant than ever."

The extra attention has led to increased scrutiny and a desire to revisit previously held notions on how to reform the third branch of government, if at all.

A popular suggestion, most recently championed by Texas Gov. Rick Perry, is to strip the justices of their lifetime appointments and give them term limits. He proposed limiting all federal judges to 18 years on the bench.

Thomas Jefferson School of Law professor Rod Smith, however, said lifetime appointments are the key to judicial independence. He said limiting their tenures would make them subject to the political whims of the day.

"If there are any complaints that seem to resonate today against the court, they center on the justices being too political," he said. "If you shorten their terms and make them more political, that would hardly be helpful."

Michael Rappaport, a constitutional law professor at the University of San Diego School of Law, is in favor of term limits and agrees with the 18-year-term proposal. He said it's long enough for them to still be independent.

"I think we have a serious problem that justices plan their retirement based on who the president is," he said. "The nice feature of an 18-year term is that you'd have justices stepping down every two years. There may be difficulties with the transition, but I think those could be dealt with."

Rappaport said limiting the length of a Supreme Court appointment also could prevent justices from staying on while in ill health or not performing at full capacity.

The number of justices also has been an interesting topic since 1937, when President Franklin Roosevelt proposed expanding the bench to 15 justices, in response to some of his New Deal legislation getting ruled unconstitutional.

In recent years, the court has displayed a penchant for 4-4 splits, giving "swing vote" status and perceived power to, first, Sandra Day O'Connor, and now Anthony Kennedy.

TJSL's Rod Smith said the problem of a split court could exist with any odd number configuration, and he doesn't view having a justice balance two differing viewpoints as a bad thing.

"The court appears to be the most moderating influence that we have today," he said. "That swing vote moderates between two voices on a majority of issues in a world that has become so politicized."

Rappaport also thinks nine is a good number. However, the USD professor favors a provision that would temporarily replace a justice recused from a case with an experienced judge, perhaps even a former, but still practicing, Supreme Court justice.

Glenn Smith doesn't think reforming the number of justices should be high on the list of priorities, and he likes the structure just the way it is.

"I would think nine is pushing the maximum number for effective group dynamics and negotiations," he said.

One issue that critics can agree on, perhaps, is the idea that the U.S. Supreme Court has gained power throughout the years.

This is partly a product of the times, with all three branches of the government gaining in influence.

"Government regulation reaches into virtually every aspect of our lives, therefore the court has to decide cases that impact virtually every area of our lives," TJSL's Smith said.

But that power pales in comparison to the other two branches, he said. The Supreme Court decides less than 100 cases a year, while Congress passes countless laws every day.

Another place of common ground is the need to tweak the confirmation process, which the law professors agree has become too politicized.

"I would say an important reform is needed for the confirmation process to make it a meaningful inquiry into a nominee's merits rather than political theater," Glenn Smith said. "And I think that filibusters should be rarely, if ever, used."

USD's Rappaport said despite all the safeguards, political decision-making has still seeped into the justices' rulings.

"Justices don't believe they're bound by the original meaning of the Constitution," said Rappaport, whose principal area of research is originalism. "They think it's acceptable to consider what would be good policy and decide cases based on that. Some consider the evolution of values over time and (are) deciding which values count, so there's a great deal of political decision-making at the court."

The solution is more cultural than structural, he admitted, and he would like law school curriculums to reflect more of an acceptance toward originalism.

Rod Smith's biggest criticism is the personal attacks some of the justices engage in while writing their opinions.

"I'd like to see all of the justices be more respectful of (their fellow) judges' good will and wisdom," he said. "The members of the court are all thoughtful, and the best way to respond is not acrimonious or in a mean-spirited way, but to say their argument's wrong for these reasons.

"I think the court hurts itself when they attack one another in a political or other manner instead of recognizing they're all good and decent people seeking to make wise constitutional decisions."

Any reforms that are made should be done after careful thought and consideration, California Western's Glenn Smith said.

"It's in the interest of American constitutional democracy to have an independent check on the system, on the exercise of power," he said. "Have some of the justices gone too far? Absolutely. Is significant judicial restraint necessary? Absolutely. But one of the reasons we have the same constitution some 200 years later is because we have an independent judiciary.

"That's why we have to be careful with reforms, so that any proposed reforms don’t undermine the independence of the judiciary in any way."

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