Alexander Hamilton said that in the Constitution he helped write, the judiciary would be “beyond comparison the weakest” of the three branches of government.
Instead, it has become the most powerful, reckless and unaccountable.
On its own, Congress could not have made presidents immune to prosecution for any crime committed under the color of official duty. No president could have immunized himself against the law, licensing himself to establish a dictatorship, take bribes or kill — but six extremist Supreme Court justices could and did.
Because they claimed to be interpreting the Constitution, their appalling decision in Donald Trump v. the United States can be erased in only two ways, both littered with hurdles.
One is to amend the Constitution to erase that decision, as President Biden has proposed. Our future as a democracy depends on reasserting that no one is ever above the law.
The other is to impeach and remove the six, but that’s politically impractical, given the Trump idolatry in Congress. If he were president again. the replacement justices would be as bad or worse.
A work of urgency
It’s difficult to amend the Constitution, but the work is urgent. No democracy and no citizen are safe from a president who is licensed to take bribes and to jail his enemies. The decision to weaken the criminal cases against Trump leaves the nation vulnerable to corruption at the highest level.
Only two other Supreme Court decisions have been as iniquitous: The Dred Scott ruling in 1857 that brought on the Civil War, and Plessy v. Ferguson in 1896, which institutionalized racism for generations.
The Trump decision follows a long line of cases in which the current majority has shilled for relentless forces that crave a powerful presidency, a weakened Congress, weaker protections for consumer and the environment, and the trampling of reproductive choice in favor of religious zealotry.
It’s equally urgent to adopt Biden’s recommendations for 18-year term limits on the court and a binding code of ethics. The term limit proposal would guarantee more turnover and reduce “the chance that any single presidency imposes undue influence for generations to come,” as the White House put it.
Look at the numbers
Since President George H. W. Bush in 1988, three Republicans have occupied the White House for a total of 18 years and three Democrats have been presidents for 20.
But all six justices who subverted the Constitution at Trump’s bidding were Republican appointees. The most senior, Clarence Thomas, was confirmed over the opposition of then-Sen. Biden and all but two other Senate Democrats. Trump, in the White House only four years, appointed three of them.
Hypocritical Senate Republican leader Mitch McConnell complains that term limits would “end our independent judiciary.” That’s the same McConnell who for nearly a year blocked President Barack Obama from appointing Justice Antonin Scalia’s successor and who then railroaded Trump’s third appointment after he had already lost the 2020 election.
Even John Roberts, a White House attorney at the time, promoted term limits. So did a co-founder of the Federalist Society. Across the country, term limits for the court have broad popular appeal.
The U.S. is an outlier
Appointing justices for life was well-intended. Justices dependent upon presidential reappointment and Senate reconfirmation would not have the independence that Hamilton said was “particularly essential in a limited constitution.” But life tenure is not the only way to establish judicial independence. Non-renewable terms would serve the same purpose.
“(T)he United States is the only major constitutional democracy without either a fixed term or a mandatory retirement age for its highest court,” wrote Washington Post columnist Ruth Marcus.
The constitutional checks on misconduct in high office — impeachment and removal, criminal prosecution and constitutional amendment — have lost their potency in an age when partisanship trumps patriotism.
The reasons for term limits for the Supreme Court do not apply to Congress, whose members are theoretically accountable to voters at the polls. If it weren’t for the court’s unprincipled decisions to ignore political gerrymandering and allow unlimited dark money in politics, many more lawmakers would be voted out.
Erwin Chemerinsky, founding dean of the University of California at Irvine law school, published a compelling book entitled “The Case Against the Supreme Court.” His proposals included a binding ethics code and the 18-year term limits that would, over time, guarantee each president at least two appointments during a four-year term.
Chemerinsky is strongly and properly skeptical that term limits could be adopted in any way other than by a constitutional amendment. But as he wrote in a New York Times op-ed: “The focus in the months ahead should be on the enormous difference between who Mr. Trump and Kamala Harris would appoint to the court.”
The public’s best defense against the ghastly presidential corruption that the court has invited is to elect as president the one least likely to exploit the opportunity. Character matters now more than ever.
The Sun Sentinel Editorial Board consists of Opinion Editor Steve Bousquet, Deputy Opinion Editor Dan Sweeney, editorial writers Pat Beall and Martin Dyckman, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.
