Is It Time to Give Term Limits to Supreme Court Justices?
Our highest court is now polarized along partisan lines in a way that parallels other political institutions and the rest of society
Norm Ornstein, National Journal
May 21, 2014
This has been quite a time for anniversaries: the 50th of the 1964 Civil Rights Act, the 50th of the Great Society, the 60th of Brown v. Board of Education. Each has produced a flurry of celebrations and analyses, including the latest, on Brown. Here's one more.
Ten years ago, on the occasion of the 50th anniversary of Brown, I attended one of the most interesting and moving panels ever. Yale Law School brought together six luminaries who had been clerks to Supreme Court justices during the deliberations over the Brown decision. They talked about the internal discussions and struggles to reach agreement, and the fact that the decision actually took two years. The justices—including Chief Justice Earl Warren and Justices Hugo Black, Felix Frankfurter, Sherman Minton, and others—tried mightily to build a consensus. Whatever their ideological predispositions, they all understood that this decision would alter the fabric of American society. They also knew it would reverberate for a long time, exacerbating some deep-seated societal divisions even as it would heal so many others and right so many wrongs.
The two terms allowed the justices to reach a unanimous conclusion. Afterward, Frankfurter penned a hand-written note (to young people: There actually were such things in olden times before text messages and tweets) to Warren that read: "Dear Chief: This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the result. I congratulate you."
As I read that letter, I thought about what would have happened if the current Supreme Court were transported back to decide Brown. Two years of deliberation? No way. Unanimous or even near-unanimous decision? Forget it. The decision would have been 5-4 the other way, with Chief Justice John Roberts writing for the majority, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"—leaving separate but equal as the standard. The idea that finding unanimity or near-unanimity was important for the fabric of the society would never have come up.
(More here.)
Norm Ornstein, National Journal
May 21, 2014
This has been quite a time for anniversaries: the 50th of the 1964 Civil Rights Act, the 50th of the Great Society, the 60th of Brown v. Board of Education. Each has produced a flurry of celebrations and analyses, including the latest, on Brown. Here's one more.
Ten years ago, on the occasion of the 50th anniversary of Brown, I attended one of the most interesting and moving panels ever. Yale Law School brought together six luminaries who had been clerks to Supreme Court justices during the deliberations over the Brown decision. They talked about the internal discussions and struggles to reach agreement, and the fact that the decision actually took two years. The justices—including Chief Justice Earl Warren and Justices Hugo Black, Felix Frankfurter, Sherman Minton, and others—tried mightily to build a consensus. Whatever their ideological predispositions, they all understood that this decision would alter the fabric of American society. They also knew it would reverberate for a long time, exacerbating some deep-seated societal divisions even as it would heal so many others and right so many wrongs.
The two terms allowed the justices to reach a unanimous conclusion. Afterward, Frankfurter penned a hand-written note (to young people: There actually were such things in olden times before text messages and tweets) to Warren that read: "Dear Chief: This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the result. I congratulate you."
As I read that letter, I thought about what would have happened if the current Supreme Court were transported back to decide Brown. Two years of deliberation? No way. Unanimous or even near-unanimous decision? Forget it. The decision would have been 5-4 the other way, with Chief Justice John Roberts writing for the majority, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"—leaving separate but equal as the standard. The idea that finding unanimity or near-unanimity was important for the fabric of the society would never have come up.
(More here.)
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