I agree that SCOTUS needs an ethics code, but, in all fairness, did Eisenhower, Kennedy, Johnson, or Nixon ever attack the SCOTUS or a decision in a speech or an address? FDR was far more politically powerful than Obama ever could hope to be, but even he knew when to back off the SCOTUS. That said, I wonder if he knew from the get-go he was going to break the 2-term tradition and just wait the court out, as justices either died or retired and he replaced them with like-minded judges.
What do you think of an age limit for Federal judges, setting either 70 or 75 as a mandatory retirement age? Although Article III judges serve for the term of their good behavior, arguably that Article didn’t conceive of Federal Judges living well past 70 regularly and living and serving into their 80s and 90s uncommon but now certainly not unheard of. If we can revisit Presidential terms of office, which we already have, if we can revisit the Electoral College, which we already have once and some are asking us to again, and if many vocally want us to revisit both the First and especially the Second Amendments, all of these due to changing circumstances (breach of the 2-term custom, the emergence of political parties, alleged hate speech, and the evolution of firearms beyond single shot muskets) then arguably we can revisit Article III as well.
I’m not naïve enough to believe that wouldn’t create its own set of problems with pension issues, talented but older judges turning down appointments that they wouldn’t get to spend much time in before they had to retire, and chess-piece judge appointments and promotions in the hopes of positioning someone near retirement so that a key slot would open sooner rather than later. However, I think that is preferable to permitting judges and justices in declining physical and mental health to remain on the bench in the hopes of holding on for just long enough for the White House to flip and ensure their landmark decisions aren’t disturbed.
Does anyone here think that Harry Blackmun stayed on the SCOTUS until he was 86 simply because he enjoyed his work? Does anyone think that William O. Douglas stayed until he was 75 and disabled by a stroke (and even then had to be persuaded by fellow Justice Fortas to step down) because he was just that devoted to public service? Does anyone think Antonin Scalia, 79 and suffering from hypertension, diabetes, and a myriad of other issues that come with being that old and not taking care of yourself, who had earlier said he hoped NOT to be on the Court all his life, stayed till the Grim Reaper came for him for any reason other than he didn’t want Obama to appoint his successor? Raise your left hand if you really and honestly think Ruth Bader Ginsburg, 84 and a cancer survivor who has trouble staying awake, is still on the court for any other reason than she knows if she goes now, the Court tilts right for a generation.
The fact is that a lot of judges and justices at the Federal level are guilty of the sin of pride, and just can’t stand the thought that someone else might come along who saw things differently than they did, and what they thought was their careful carving into the marble face of time would turn out just to be footprints in the sand, that a subsequent tide would wash away. It’s time to remind the judges that they, like all other folks who don’t wear a black robe, are human, and subject to the vagaries and changes of history as much as anyone else. They shouldn’t try to change that verdict.