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Politicizing judicial independence and liberty

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Editor’s note: Gov. Rick Perry recently proposed for a Constitutional Amendment to set term limits on Supreme Court justices (for 18 years, staggered every 2 years). We asked a local expert on constitutional law if Supreme Court justices should be given term limits, and if not, what are the problems with such a proposal.

With his proposal for a constitutional amendment setting term limits on Supreme Court justices, Gov. Perry has joined a hue and cry from the left and the right, responding to perceived excesses on the part of the Court.

For those who cherish the rule of law, these attacks — whether from the left or the right — are a cause for alarm. If we awakened tomorrow without the rule of law, no life would be secure.

Like all Americans, there are Supreme Court decisions that I agree with and there are those I find troublesome. Having taught constitutional law for years, it could not be otherwise. Justices are human, and so am I. My faith in the Court and the rule of law, however, remain unshaken.

Chief Justice Warren, who spent much of his life in public office including service as our governor, was deeply moved when he donned his judicial robe for the first time as he was sworn in as a lifetime member of the Supreme Court. He had viewed the Court as just another political appendage of our government. As he was sworn in, however, he felt the mantle that the robe represents. He could sense that he was a steward of the rule of law.

I believe that each member of the current Court, conservative and liberal alike, shares those feelings. I could sense this recently as Justice Kennedy genuinely struggled to find a constitutional principle that would permit him to support the health care legislation.

The founding generation understood the importance of the rule of law. One of the charges leveled against King George in our Declaration of Independence was that he “made judges dependent on his will alone.”

Judicial independence, which is secured in part by life tenure, subject to impeachment, secures the rule of law and our liberty as nothing else can.

In 1789, Thomas Jefferson wrote James Madison, who was introducing our Bill of Rights in Congress. Jefferson counseled, “In the arguments in favor of a [bill] of rights, you omit one which has great weight with me, the legal check which it puts in the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity.”

In 1803, in Marbury v. Madison, the Supreme Court laid the foundation for the rule of law here and abroad, by holding that the Court held the power to protect against constitutional violations by the powerful executive and legislative branches.

In 1990, I was in Poland as part of a group that was working with the drafters of the new Polish Constitution. We were discussing liberty and equality. I offered a robust theoretical defense of equality. All the Polish participants, however, responded by reiterating the importance of the rule of law.

When I asked my friend Lech Garlicki, who later sat on the Polish Constitutional Court and now serves on the European Court of Human Rights, why they emphasized the rule of law at every turn, he simply responded: “Rod, you would not ask such a foolish question if you lived without the rule of law for a generation as we have.”

Gov. Perry does not understand the importance of judicial independence. His term limit proposal undercuts the rule of law. He revealed his motive when he said term limits will prevent the justices from ruling “with impunity from the bench.” The Latin root of impunity is “punishment,” and Perry’s proposal is designed as a means of punishing judicial independence.

In this age of acrimony, judicial independence is under siege from all sides.

In his 2010 State of the Union address, President Obama joined the fray by criticizing the Supreme Court for invalidating a campaign finance law. He argued that the Court “reversed a century of law to open the floodgates for special interests.” Justice Alito responded by mouthing the words, “not true.”

Supporting the President, then-Rep. Anthony Weiner responded, “[The Court] deserved to be criticized. If [Alito] didn’t like it, he can mouth whatever they want. These Supreme Court justices sometimes forget that we live in a real world. They got a real world reminder tonight, if you make a boneheaded decision, someone is going to call you out on it.”

In responding recently to oral arguments in the health care case, President Obama was “confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” He reminded conservatives that, “for years what we have heard is that the biggest problem is judicial activism and that an unelected group of people would somehow overturn a duly constituted and passed law.”

In a world of expanding, unfettered governmental powers exercised by the legislative and executive branches of government, individual liberty is increasingly at the mercy of the majority will. In such a world, we desperately need every bulwark, including life tenure for justices, that protects an independent judiciary. Without those bulwarks, the Constitution is little more than a piece of parchment to be viewed nostalgically during a visit to the nation’s capital.


Smith is a Distinguished Professor of Law at Thomas Jefferson School of Law and a nationally recognized constitutional scholar.

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