Norm Ornstein has been fixated on the purest of all Beltway ideals: compromise. Actually, it’s probably more precise to say that Ornstein has a fixation with compromise among the establishment, not so much the proles. Because, trust me, if Ted Cruz was Senate Majority Leader, Norm Ornstein would be pining for a monarchy.
But let’s accept the AEI scholar’s stated purpose. Some of you may believe partisanship is healthy organic reflection of genuine disagreement in the nation, but for Ornstein there is nothing more devastating than inaction. Nothing. And after the past few years lamenting the existence of reasonable curbs on majority rule, he’s come up with another way to deal with our dawdling government: term limiting Supreme Court Justices. In the old days, you see, Supreme Court decisions were often unanimous. These days, there are too many close calls and too many overturned laws. This has nothing to do with the unconstitutionality of the legislation congress happens to be passing these days, but everything to do with the emergence of something called “ideology.”
How do we stop it? More politics.
Limiting terms is hardly new idea among those on the left who believe that a bunch of old codgers are holding up progress by taking all things too literally; Linda Greenhouse made the case in Slate a few years ago. The thing is, Ornstein’s justification for term limits is selectively deployed. First off, when you dig a little deeper into his argument you end up where you always end up when you dig into his argument: “partisanship” and “polarization” = “conservatives”:
Scott Lemieux, in The Week, noted further that the polarization on the Court, like the polarization in Congress, is asymmetric; conservative justices have moved very sharply to the right, liberals a bit more modestly to the left.
In context, this is a laughable contention — when it comes to Congress, but especially when it comes to SCOTUS. It’s true that the right has increasingly embraced Original Intent as its favored constitutional interpretation over the past decades. And left has basically remained unconcerned about constitutional limitations and individual liberty during that time. They only moved modestly because there’s not much room to move left.
Anyway, we can disagree about ideological temperament of judges and the positive/negative influence their ideas have on the court, but no independent observer (if one exists) could convincingly argue that Chief Justice Roberts is more “partisan” than Justice Sotomayor or Justice Ginsberg.
It is pretty clear, though, that through lifetime appointments, the Founders wanted to shield judges from the political pressures of the day. But an excellent byproduct of having ancient, long-serving justices is that they are far more likely to be impervious to the fleeting populist bugaboos and contemporary preferences that drive Ornstein’s cause. This should be about the long game. Justices may be bewildered by technology, but on the bright side, some of them still believe that protecting free speech is more vital to a liberal state than sticking it to some plutocratic oilmen. This upsets Ornstein greatly.
Ornstein also finds it off-putting that the court is “increasingly active in overturning laws passed by Congress and checking presidential authority,” from which we can only deduce that he believes we need a Supreme Court to rubber stamp congress and expand executive powers. Seems to me that a court’s propensity to periodically “overturn” legislation (by which I think he means “find unconstitutional”) probably means its doing its job – though, not nearly as often as it should.
Even on a practical level, and even if I believed that Ornstein was perturbed by polarization and not just conservatives, his stated reason for term limits doesn’t make much sense. He argues that we can reduce polarization within the least political institution of government by subjecting it to more debate and more politics. He claims that 18-year terms would lower the temperature on confirmation battles by making the stakes a bit less important. Really? We have presidential elections every four years, does that seem to lower anyone’s temperature? And just as every presidential election is the most important in our lifetimes, every confirmation battle will be the same. And because we will all know more often than not when those confirmation votes will take place, rest assured that the process will be longer, uglier, and involve more money and influence peddling than anything we now experience.
But, in the end, the most convincing argument against Norm Ornstein’s case for term limiting Supreme Court justices comes from a piece by a political scientist named Norm Ornstein. If SCOTUS, which is supposed to be immune from democracy’s ephemeral demands, needs term limits to function properly, then surely politicians that are entrenched in Washington for decades should be equally constricted. Well, two years ago Ornstein (with Thomas Mann) penned a piece titled, Five Delusions About Our Broken Politics, in which he had this to say about the idea:
Limiting the terms of public office is, in our view, utterly unresponsive to any significant dimension of our dysfunctional politics. It belongs in the same trash bin as smug reverence for the status quo, independent presidential candidates and balanced budget amendments.