Bad Governance

Today, with its attendant demonstration in Washington, is the 35th anniversary of an act of judicial excess that has had disastrous consequences. In addressing one abomination, the back alley abortions of the 1960s, the court created another, the unrestrained abortion mills of today. They also tore a hole in the fabric of society that has yet to heal. The morality of life and death aside, abortion was and remains one of the great social issues of the day. In deciding Roe v. Wade, the court attempted to remove it from the political processes that make representative democracy work and resolve it by fiat. In finding a right to abortion in the constitution they not only amended that document, they left legislatures unable to exercise critical functions and effectively gave the people they serve no redress. I also believe that like Galileo’s inquisitors they will ultimately be unsuccessful. We will decide what sort of society we wish to be. It’s far too important to leave to a nine member gerontocracy. This is about the rule of law.
Roe and a whole range of other decisions where judges have taken it on themselves to change the law have put us on a dangerous path. Both left and right have come to view the courts as places where they can advance agendas that cannot survive the rough and tumble of legislative process. What happens when the Supreme Court is dominated by people who believe as I do that a baby’s right to life should trump its mother’s right to an abortion?  Do they finally send the issue back to congress and the several states or simply read the baby’s rights into the constitution? Is it just up to them? That is precisely what the recurring nomination fights are all about. The left has dominated for fifty years. The right thinks it is payback time. Is this really how we want to be governed? If courts are to decide the most important social and moral issues without effective restraint we begin to look a lot like a theocracy.
New laws tend to have unintended consequences. Legislators can and do spend a lot of time and energy addressing problems with earlier actions. We expect it of them and it isn’t unusual for laws to be repealed altogether. Not so with the constitution. The framers wisely made the constitutional amendment process a difficult one. I think they would be appalled to see how courts have subverted it. When judges find new provisions in that document they tend to become sacrosanct. It is very difficult for even the judges themselves to admit errors in earlier reasoning, witness the mess they’ve made with the death penalty since they placed a moratorium on it in the Furman decision. They have the same problem the Inquisition had, once something becomes revealed truth it can be hard to come to terms with reality.
The judicial system is in need of reform. My favorite proposal is to replace the lifetime appointment system with single terms of 18 years and no eligibility for reappointment, except possibly for those appointed to fill unexpired terms. Stagger the terms so that one new Supreme Court Justice is appointed every other year, always in non-election years. That would give every President the opportunity to appoint at least two and no more that four. It would still provide judges a measure of insulation from the whims of public opinion without allowing them unrestricted opportunity to rule by edict. It would also provide a mechanism for removing judges who tend to stay on far into their dotage.