By Richard Meyer, January 23, 2021
“Bring back amendments.” Justice Antonin Scalia said that to me in 1996 after I asked him for the most important step we could take to eliminate the huge political divide in our country. Scalia had just given the Law Day speech for our small military legal office at Fort Huachuca, Arizona. We had invited him with a “What have we got to lose?” attitude. He came because he failed to R.S.V.P. that he could not attend in a timely manner, so he felt honor bound to show up. A classy move by a man renowned for professionalism by friend and foe alike.
Scalia’s Law Day talk was about the merits of the American process. He said it was a shame that such a critical part of our political system didn’t get people excited. “If I want to lead a parade to support free speech, thousands will show, but if the parade is in support of bicameralism, I’ll be walking by myself.” But it’s the process that gives our rights value, he explained. Pointing to the rights in the new Russian Constitution, he said they seemed vastly superior to those in the Bill of Rights, but that they “…were not worth much because there was no process to protect them.” His ultimate point that day was that the nation should be led by the people through their elected leaders, not “…Tony Scalia and eight of his friends.”
Scalia’s stance against judicial activism is well known, but his justification for that stance is frequently misquoted or misunderstood. No, he did not feel the law should never change. No, he did not feel that we should continue to live under the tyranny of a group of long dead white men. Instead, he felt that the Constitution included a procedure to keep it relevant and updated called the amendment process. The amendment process is difficult, but by requiring three fourths of the states to ratify an amendment, it is probably the most inclusive process in our federal government. Sidestepping the agreed upon process causes not only voter frustration, but feelings of impotence and sometimes hate… neither of which are a healthy part of a democratic political system. By bringing back amendments and following the process our founding fathers created rather than ignoring it, we give the people back their role and voice in the democratic process. Towards that end, I have an amendment to propose to you.
We should amend the Constitution to end life tenure for Supreme Court justices and instead place a maximum number of years they can serve on the Court. We need to do this because the selection of judges has become the tail wagging the government dog.
Former Senate majority leader Mitch McConnell believes the most important legacy of his tenure in that position will be the large numbers of judges and justices he helped appoint. That statement is incredibly troublesome. Article I of the Constitution details the immense power and responsibility of Congress… but it does not even mention the advice and consent power. No, that power is only mentioned in Article II and presented more as a legislative limitation on the executive power. So, in essence, McConnell is saying that his legacy is not in doing the many jobs tasked to his branch but rather in preventing the Senate from interfering in one job assigned to the President... a President elected by a simply amazing coalition of voters ranging from Baptist preachers to Harley riding bikers united behind the idea that he would nominate the ‘right’ judges and justices.
If the most important thing our combined executive and legislative branches are doing is picking judges, something is very very wrong in the republic.
Single issue voting has led to our current political tribalism which in turn drowns out meaningful debate on the myriad of other crises facing our Nation. The perception of judicial activism is the new normal and we can’t put that genie back in the bottle, but perhaps we can mitigate the effects. If we limit the time a Justice can serve on the Court (and then allow them to retire at full pay for life), we instantly de-emphasize the importance of each nomination and provide room for other issues to become a more significant part of the national debate.
Plus, maybe, just maybe, we can bring back amendments in the process.
Richard Meyer is Interim Executive Director, Center for Ethics and the Rule of Law,
University of Pennsylvania, Philadelphia, PA 19104
Notes:
We got here as a result of a perceived breakdown in the process that Scalia held so dear.
Agree or disagree with the Court’s decision in Roe v Wade, you should see that we continue to pay a high cost due to how it came about. The national debate on abortion was instantly ended by the votes of seven lawyers. By pulling the decision from the electorate and applying a new meaning to famous words that had already been interpreted countless times over the last century and a half, the Court radicalized those on the losing end of the decision. It was the metaphoric equivalent of the head ref reinterpreting the rules and deciding to stop a close Superbowl in the middle of the third quarter and declare the leading team the winner.
(Yes, I realize that Roe v Wade was using a precedent set by Griswald v Connecticut. Following the precedent of a case that itself subverted the process does not remove that taint. Please understand that this post is not about the actual substance of either case. If you support reproductive rights and feel the Roe v Wade decision brought about a just result, imagine if that same Court (or the current Court in 2021) decided to practice some activism in the reverse direction. They reread the 5th and 14th amendments and their prohibition against depriving one of life without due process of law as granting a right to life that begins at conception. This would open the door for rapist fathers (or some other interested individual like the parents/grandparents of the mother) to go to court to require a raped mother to carry a child to term. My guess is that in the next election you would find yourselves in the ranks of the one-issue voters, as many of your counterparts have been for the last five decades.)
Meanwhile, in that same era the far less contentious Equal Rights Amendment was in the process of failing to get the necessary number of states for ratification. Suddenly the entire paradigm changed. If you want to change the Constitution, forget about the incredibly difficult amendment process, all you need to do is appoint the right judges to read it differently! Social conservatives leapt into this new realm of conflict with both feet, the culmination of which was the election of Donald Trump as our 45th president. Many if not most who voted for Trump felt somewhere between dislike and outright disgust with his personal character. My how the party of character has changed. Christians who voted for Ford over Reagan in the 1976 Republican primary because they were troubled by Reagan’s divorce were now lining up behind a man with enough divorces, bankruptcies, peccadillos, and allegations of worse to be the lead in a telenovela. I suspect that even if the rumors were proven true, that the man was a Russian puppet that had complete disdain for the military he commands, yet still secure the conservative vote by promising to appoint the right judges.
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