Saving the Supreme Court from itself

"The Court, in addition to the proper use of its judicial functions, has improperly set itself up as a third house of Congress — a super-legislature, as one of the justices has called it — reading into the Constitution words and implications which are not there, and which were never intended to be there. We have therefore reached a point as a nation when we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men."

Care to venture a guess who made the above remarks? You’re probably thinking it was a conservative commentator rallying troops for the pending battle to control the Supreme Court. Sorry. Not even close.

Those words were spoken by Franklin Delano Roosevelt in a March 9, 1937, "fireside chat" on the radio as he attempted to rally Americans to support his plan to expand the membership of the Supreme Court beyond the nine justices who were declaring major portions of Roosevelt’s New Deal as unconstitutional.

The Constitution doesn’t specify the number of justices who sit on the court. Congress originally decided the court should consist of six justices. It wasn’t until 1869 that the court reached nine members. What is the ideal number of judges on the court? It’s an interesting debate. How is it that five people can say they see a "right" to abortion in the Constitution but four others can’t find that same language, but it becomes the law of the land?

Why trust the judgment of five people? Why not have 17 Supreme Court members with a majority of nine needed to rule on Constitutional questions? If nine people came to the same conclusion, wouldn’t that be more reassuring than just five?

Roosevelt’s proposal was to have Congress pass legislation allowing the president to appoint new justices for every justice who stayed on the court past the age of 70, up to a total of six new justices. Had he gotten his way, Roosevelt would have had 14 justices on the court. And by appointing six liberals, Roosevelt would have gotten his way on the New Deal.

Roosevelt’s attempt at "court packing" didn’t work. Americans don’t like change. The sitting Supreme Court justices at the time fought against it. After all, who wants to share power?

Something has to be done to bring some balance back to Supreme Court, which has run amuck in the past 50 years, finding bogus justification for social reform that is not included in the Constitution. Just as Roosevelt complained in 1937, today’s court — at least the four liberal judges who serve on it — considers itself a super-legislature, able to rule on matters such as abortion, immigration, same-sex marriage and campaign financing reform.

In his best-selling book "Men In Black: How the Supreme Court is Destroying America," constitutional lawyer Mark R. Levin argues for term limits as a way to rein the runaway judiciary. Levin makes a convincing case, noting in his book that associate justices of the Supreme Court serve an average of 17 years while 11 justices served 30 years or more. Can you imagine a president serving that long? Of course, there are no term limits for Congress, so you have many members serving for decades or in the case of Democratic Sen. Robert Byrd of West Virginia, about a century.

"Perhaps Supreme Court justices should be appointed to fixed, staggered terms of 12 years, with three years intervening between terms," Levin argues. I would go one step further. Lower-court judges face mandatory retirement (usually at age 70). So why allow Supreme Court justices to serve into their 80s or 90s? I’d like to see a mandatory retirement age of 75 for all Supreme Court justices.

Levin also makes one of the most daring proposals to curb judicial activism. He would like to see a Constitutional amendment establishing a congressional veto over Supreme Court decisions, an extension of the power Congress now has to override presidential veto of legislation.

"The framers worried that a president might amass too much authority. Today, the problem is an oligarchical Court, not a presidential monarchy, supplanting the constitutional authority of the other branches," Levin writes in his book.

Under Levin’s plan, a two-thirds vote of both the House and Senate could override a Supreme Court decision. Imagine that. Elected representatives of the people actually getting to decide important issues. Of course, it will never happen. The people getting a say in what government does? The Supreme Court will undoubtedly rule it unconstitutional.

E-mail Tony Phyrillas at tphyrillas@pottsmerc.com