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February 08, 2006

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Bob

And this just goes to show you why it is a mistake to appoint Supreme Court Justices for life! What are they, some kind of oligarchy? Appointed for LIFE! LIFE! Utterly rediculous!

Deborah Spaeth

And this just goes to show you why it is a mistake to appoint Supreme Court Justices for life! What are they, some kind of oligarchy? Appointed for LIFE! LIFE! Utterly rediculous!

Thank goodness we can impeach them.

I suspect this will happen at least once in the next half-century.

Bob

Deborah,

You're dreaming! In over 200 years, there has never been a Supreme Court Justice that has been removed by impeachment. (Only Chase was impeached, but he was acquitted.) A fall from grace by one of these Gods would have to be promethean. They are Gods! With what could they be charged? I'm not sayin that it can't be done, but do you realize the grounds for impeachment are very few? I doubt we could impeach one for his political beliefs, even if his beliefs are apparent by his votes.

Bob

The only grounds for impeachment I can find are : bribery and treason. Good luck in using impeachment to rein in these guys.

In my original post, I am trying to make the case for term limits for Justices. I don't believe that impeachment is a viable approach to moderating the Supreme Court. I do believe that life appointments of Justices is wrong and possibly an error on the part of the founders.

I would propose a total of 12 justices (like a 12-man jury), dividing up the Justices into four "classes" (like Congress) of three each. Each justice serves only one 12 year term. Every 12 years, one class of 3 judges are to be replaced (just as they are now...recommended by the President and confirmed by Senate). The three classes would be staggered every 4 years. This way, even a two-term president could never change more than 50% of the justices. Of course, a death may throw a kink in this plan, but I'm sure you could think of something to work this out.

Andrew Hyman

I listened to Justice Breyer's speech, and would like to address one point that I found disturbing. At about 54:30 into the speech, Breyer discusses the Ninth Amendment. He quotes Harvard History Professor Bernard Bailyn as saying that rights, like law itself, shouldn't be fixed or frozen. Breyer therefore concludes that the Ninth Amendment is a license for the Supreme Court to change those rights.

But Breyer omits some critical stuff that Bailyn said. Here's the full quote from Bailyn, in which Bailyn repeatedly says that the Ninth Amendment protects rights once they are ENACTED INTO LAW (emphasis added):

"When the federal Constitution was written the wisest minds in America decided that there should be no national Bill of Rights, not merely because most of the state constitutions already contained some such protections, but, as Madison (who would later write the federal Bill of Rights) said, "There is a great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude." In other words, the enumeration of rights by the federal government, the mere listing of them and defining them, would necessarily limit their scope. "The rights of conscience in particular [he said], if submitted to public definition, would be narrowed more than they are likely ever to be by an assumed power." The right solution, he and others then felt, was what is implied in the present 9th Amendment: that, in addition to the rights specified by the states, there is a universe of rights, possessed by the people latent rights, still to be evoked and ENACTED INTO LAW.

"But was this workable? In any given situation, someone would have to decide whether the rights that were claimed were valid, and that would leave the existence of rights to the mercy of personal and political opinion, and no one would be safe. Some rights a core body of rights protected against the powers of the federal government would have to be specified, and the residue somehow protected in general terms. This is the compromise that we have inherited from them and that we live with, and struggle with, and benefit from, every day of our lives: in the first eight amendments of the Constitution, a carefully worded list of specific rights protected from encroachment by the federal government, together with the belief that there are not only rights protected by the states but a reservoir of other, unenumerated rights that the people retain, which in time may be ENACTED INTO LAW."

Thus, Professor Bailyn repeatedly pointed out that the rights protected by the Ninth Amendment become protected by enacting them into law. In other words, it's not okay to deny or disparage rights because they're not listed in the Bill of Rights, but it IS okay to deny or disparage rights because they've not yet been approved by the democratic process. Thus, the Ninth Amendment protects rights listed in state constitutions, and in state and federal statutes, as well as protecting rights that are outside the scope of the enumerated federal powers. The Ninth Amendment DOES NOT authorize judges to enforce rights that haven't been enacted into law. It seems like Breyer concludes the opposite. If he's going to cite Bailyn, at least Breyer should mention that Bailyn doesn't agree with him.



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