As if their leanings aren’t as obvious as that tower in Pisa, this time of year, when decisions in their big cases come out daily, the tilt becomes plain as day. You can probably do this as well as I can, but if you just name the issue, I can pretty reliably tell you what the final score will be and which team will come out on top.
Sure, to some extent it’s always been like this, but as one who’s paid close attention to the justices’ shenanigans since the 1960s, it seems more pronounced than ever — and the decisions more vitriolic than ever toward their colleagues. That last characteristic of insulting dissents seems to have ratcheted up during the reign of my old law school professor Antonin Scalia, whose doppelganger must have been Don Rickles, but even Rickles wasn’t as mean-spirited about it.
And worst of all, not even the longest-standing precedent is safe. If the current majority doesn’t like a decision that’s been on the books since before they were born, they just swat it away and claim it was wrong to begin with, because it was based on “judicial activism” rather than the original meaning of the Founders’ words. Of course, nothing about modern American life and technology existed 250 years ago, so the whole concept of “originalism” is just another form of activism dressed up in a white wig and ruffled shirt.
Which finally brings me to the point I’ve been circling for the past few paragraphs. What if our Supreme Court and other federal judges were appointed initially on the condition that their “good behavior” — that’s the standard in Article III, Section 1, after all — was to be determined after a trial period of, say, five years, with the judgment then to be made whether they had met that standard or were going rogue to such an extent as not to be reconfirmed for another five years, and so on?
Contrary to popular belief, there’s nothing in the Constitution about being appointed for life; that’s just what “good behavior” has been taken to mean — thus far. And if some of our other constitutional provisions have mutated so considerably to their current meanings, there’s no reason why the assumed meaning of this one should be sacrosanct.
So, let’s appoint the Souters, the Alitos, and the Scalias on condition of good behavior and see how they behave over that first term of years. If they’re not observing proper respect for established precedents, or are routinely bad-mouthing their colleagues, or are just making it up as they go along to fulfill some partisan personal philosophy — or are abusing the ethics of their positions by taking emoluments that make their impartial judgment suspect — then it’s back to some well-paying law firm for them, where they can pursue any of these judicial no-no’s with abandon.
I confess to having totally made up this theory of constitutional interpretation, but if you’re with me on this, it could become a national movement — and could go all the way to the Supreme Court on its own. Then, we’d really see how the votes came out, because any of them worried about their future employment wouldn’t want to be disrobed in public, would they?
L. Phillips Runyon III has practiced law in Peterborough for 50 years and was the presiding justice of the 8th Circuit Court for 27 years.