Friday, February 18, 2005

Supreme Court Term Limits?

I too am ambivalent on this topic.

Randy Barnett provides a useful link to an interesting debate on judicial term limits.

Our Constitution is a good thing. No, not perfect, but I support caution regarding such a far-reaching change. FDR's tenure and resulting appointments have always been one of the best arguments used to justify judicial term limits, but the power of that argument has been substantially diminished with the Twenty-Second Amendment.

I prefer means of reigning in judicial power already present in our Constitution, e.g. Congress exercising its separation of power role as defined in Article III, Section 2, Clause 2:

. . . In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

More interesting arguments that Congress is not powerless:

I believe that, at least as a constitutional matter, the issue of congressional power to control federal jurisdiction is far simpler than many other scholars think.  The text and internal logic of Article III of the Constitution make clear that congressional power to control the jurisdiction of the lower federal courts and the appellate jurisdiction of the Supreme Court is extremely broad.  There is nothing in the provision’s text that in any way confines congressional authority in either area.  It is highly likely, however, that the federal courts would construe congressionally imposed, substantively based restrictions on their jurisdiction in a highly grudging manner.  Thus, if Congress wishes to exercise its vast authority, it would be advised to state its intent explicitly in the text of the relevant statutes.