The Oxford Companion to the Supreme Court of the United States/Reconsidering the Insular Cases: The Past and Future of the American Empire,

Term limits and the Supreme Court
Is it bad to have a bunch of old judges?
Aug 20th 2015, 17:27 BY S.M. | NEW YORK



ON THE third season of “House of Cards”, the Netflix show about Washington Machiavellianism gone haywire, a fictional Supreme Court justice mulls retirement when he is diagnosed with Alzheimer’s. Aside from some overblown criticism of the conservative justices, nobody is speculating that anybody on the real-life Supreme Court is suffering from a degenerative brain disease.

But the show’s plotline calls attention to the fact that, barring death or an impeachable offence, the justices themselves decide when to hang up their robes. And today’s Supremes are no spring chickens. Ruth Bader Ginsburg, the liberal lion who has resisted calls to retire during Barack Obama’s presidency, is 82. Antonin Scalia, on the right, and Anthony Kennedy, in the centre, are both 79. Stephen Breyer is 77. Four justices—Clarence Thomas (67), Samuel Alito (66), Sonia Sotomayor (61) and the chief, John Roberts (60)—are sexagenarians. The new kid on the bench, Elena Kagan, is a wee 55. If nobody leaves the court in the next five years—an unlikely permutation—the average age of the justices will be 75 at the end of the next president’s first term.

Is there anything wrong with a grey bench? Fix the Courts, an advocacy group, says yes, and proposes that future nominees to the Supreme Court take a pledge to serve no more than 18 years before stepping down. Given how hard it is to amend the Constitution, this proposal is less quixotic than an attempt to change the provision in Article III permitting justices to “hold their offices during good behaviour”. But are term limits for justices, whether imposed or voluntarily agreed to, a good idea?

Fix the Courts has one primary argument in favour of fresh blood, and it’s not quite convincing. The goal of life tenure was to “shield those serving on the court from the political pressures of the day”, the group observes, but “today’s justices...are polarised along partisan lines in a way that mirrors our other broken and gridlocked political institutions”.

There are three problems with this line of reasoning. First, while the Roberts Court issues more closely divided rulings than previous courts ever did, it’s a myth that “today’s justices” are more political than their forebears. Under its first chief justice, John Marshall, the court flexed its Federalist party muscle against the new president, Thomas Jefferson, in its ingenious Marbury v Madison ruling. During the Lochner era from 1905 to 1937, the court routinely struck down progressive legislation to improve worker health and safety and to extricate the country from the Great Depression. It was enough to spur Franklin Delano Roosevelt to propose an ill-fated court-packing plan to change its composition and the tenor. (He withdrew the plan when the court started upholding New Deal policies.)

Second, there’s no reason to believe term limits would put a damper on the court’s politicisation, or fundamentally change the “political circus” of the Senate confirmation hearings. Even if nominees taking the pledge can be trusted to keep their word—remember, it isn’t legally binding—18 years is still a long time. Political actors will remain quite worried about who ends up among the nine most powerful jurists in the land.

Third, 5-4 decisions show the justices may be “polarised” on certain issues, but it does not mean the justices are “partisan”. Nobody on the court seeks to toe the line of either of the major political parties. In fact, during the term that ended in June, many of the justices—the conservative ones in particular—were willing to stray from their typical ideological camps in plenty of cases. This past spring, for example, Chief Justice Roberts voted with the four liberal justices to save Obamacare and to uphold restrictions on fundraising by judicial candidates. Justice Thomas voted against his conservative brethren in permitting Texas to refuse to print Confederate flags on licence plates. And Justice Alito came to the defence of pregnant women’s rights in the workplace.

Eliminating life terms for justices is questionable as a solution to the purportedly novel problem of judicial politicisation. But there are other good reasons to wish for a court where no one stays on for three or four decades. At the founding, Thomas Jefferson suggested that since the “earth belongs usufruct to the living”, America ought to have a constitutional convention every 20 years to scrap the old document or subject it to revisions. That proposal did not go anywhere and may not have been a recipe for the early republic’s stability. But there is wisdom in the general notion of more frequent leadership change.

No matter how wise or enlightened they may be, a bench of seven or nine octogenarians will have a circumscribed perspective on the country for which they are adjudicating fundamental questions. Encrusted jurisprudence won’t necessarily be bad for the country: as Alexander Hamilton pointed out in Federalist 79, the “danger of a superannuated bench” resulting from aged judges is “imaginary”. Indeed, Justice Ginsburg shows in both her written opinions and incisive questions during oral argument that she is as vigorous intellectually as she has ever been. But breathing new life into the nation’s highest court more often—even if it does not make the tribunal any less political—would bring more dynamism to the judiciary, jog the justices' decision-making patterns and narrow, even if only slightly, the yawning gap between the enrobed ones and everyday citizens.

Supreme Court justices’ decisions have increasingly been regarded as falling along ideological lines. But since justices are not representatives of any political party, it confuses matters to identify them in nakedly partisan terms. As we await big decisions on gay marriage and the fate of Obamacare, it is encouraging to see signs that the justices are not always captive to their predilectionshttp://econ.st/1K8rZmz

A taxing decision

IN THE 15 years since the nine members of the Supreme Court effectively picked the nation’s 43rd president in Bush v Gore, the justices’ decisions have...

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The Oxford Companion to the Supreme Court of the United States (2 ed.)  

Edited by Kermit L. Hall

This online edition was reviewed and selectively updated by the original editor in 2011.

The highly‐acclaimed Oxford Companion to the Supreme Court was first published in 1992, since which time the Supreme Court has continued to write constitutional history. This new edition of the Companion has been fully updated and includes new entries on key cases and full treatment of crucial areas of constitutional law, such as abortion, freedom of religion, school desegregation, freedom of speech, voting rights, military tribunals, and the rights of the accused.

This is an accessible and authoritative guide, essential for judges, lawyers, academics, journalists, and anyone interested in the impact of the Supreme Court's decisions on American society.

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13 May 2015

“Does the Constitution Follow the Flag?”

“Never during my three years as a law student or two years as a law clerk at federal courts did I hear of the ‘Insular Cases.’ Yet the series of US Supreme Court decisions gathered under this name established a doctrine, in force to this day, determining that the US Constitution does not apply fully to territories acquired through conquest after the Spanish-American War and the signing of the Treaty of Paris in 1898.” So writes Harvard Law School Dean Martha Minow in her Preface to Reconsidering the Insular Cases: The Past and Future of the American Empire, the latest publication from Harvard Law School’s Human Rights Program. The volume grew out of a February 2014 conference at Harvard that was organized to interrogate this century-old series of Supreme Court decisions that, judging by Minow’s experience, aren’t often given the attention they deserve. As Juan R. Torruella, Puerto Rico-born Judge of the US Court of Appeals for the First Circuit expressed in his conference keynote—included in the printed volume—“the Insular Cases represent classic Plessy v. Ferguson legal doctrine and thought that should be eradicated from present-day constitutional reasoning.”

In his Introduction to the book, excerpted below, Harvard Law School professor Gerald L. Neuman further elaborates on the need to continually question a doctrine that raises crucial issues of both constitutional law and human rights.

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The US Supreme Court’s decisions in the Insular Cases of 1901 provided the legal framework for the governance of a colonial empire in the Atlantic and the Pacific, loosening the constraints of constitutional principle in order to facilitate rule over the subjected areas and their inhabitants. In the wake of the Spanish-American War and the transfer of several of Spain’s imperial possessions, the metaphorically expressed question “Does the Constitution follow the flag?” became newly urgent. The Supreme Court majority gave a new answer: not entirely.

The most important of the 1901 decisions was Downes v. Bidwell, in which the court divided five to four in favor of congressional power to discriminate between the mainland and the new territories in customs matters. In retrospect, the crucial opinion was the concurrence of Justice Edward Douglass White. He accepted that the US Constitution governed the actions of the United States at any location, but he contended that it was still necessary to determine the appropriate geographical scope of each constitutional provision. The applicability of a constitutional limitation to a particular territory would depend on the situation of the territory and its relations to the United States. If the United States acquired a new territory and did not admit it as a state, then Congress could choose whether to “incorporate” the territory into the United States as an integral part or to treat it merely as a territory appurtenant to the United States. White thereby adopted a distinction that had been suggested by the political scientist Abbott Lawrence Lowell in an article in the Harvard Law Review, although White added some elements of his own in elaborating the consequences. For incorporated territories, the Bill of Rights and other constitutional limitations would apply in the usual way. For unincorporated territories, only “fundamental” restrictions on government power would apply. Moreover, an unincorporated territory could be kept in subordination indefinitely, without the prospect of future statehood. The United States had to have the same power to acquire and govern overseas territories and populations as the European colonial powers were exercising under international law.

The four dissenters protested in vain that the majority’s ruling departed from prior practice and constitutional values. In the years that followed, White’s concurring analysis gained the support of a majority and then, after the death of the steadfast dissenter John Marshall Harlan, unanimity. The term “Insular Cases” may refer either to the original set of decisions from 1901 or to the entire series of decisions from Downes v. Bidwell (1901) to Balzac v. Porto Rico (1922) that solidified this jurisprudence.

The doctrine of the Insular Cases has never been overruled, despite the tectonic shifts in constitutional law, international law, and human rights conceptions that have intervened since 1901. It continues to provide the foundation for governing inhabited territories and small islands without permanent populations. The doctrine is peripheral to the interests of most constitutional law scholars, but highly consequential for the four million people who live in Puerto Rico, the US Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands. It affects their civil rights directly, and it affects all their rights by limiting their political rights, which in turn reduces their ability to influence the laws that regulate them. The federal government has taken steps to reform territorial relations on a noncolonial basis, but relics of colonialism remain.

A doctrine that produces such effects must be continually reexamined, and that is why the Human Rights Program at Harvard Law School is publishing this volume. The book results from a conference that Tomiko Brown-Nagin and I organized at the initiative of Dean Martha Minow, which took place on February 19, 2014. The book includes the vivid keynote address delivered by Judge Juan R. Torruella of the United States Court of Appeals for the First Circuit, as well as other chapters based on presentations from the conference.

When legal rules have imposed injustice, it becomes necessary to contemplate both how the rules could be reformed and what additional measures should be taken in response to the injustice. This volume considers changes to the constitutional framework, which ultimately would depend on approval by the Supreme Court, and three strategies that could remove territories from the field of application of the Insular Cases doctrine. These strategies are admission to statehood, full independence, and the less widely known alternative of independence accompanied by a compact (i.e., a treaty) of free association. Each alternative has disadvantages and advantages in relation to the others and to the current status quo.

Most of the chapters emphasize the example of Puerto Rico, which was one of the original targets of the Insular Cases doctrine and is now where more than 90% of the insular citizens live. As several authors observe, the Commonwealth of Puerto Rico has suffered severe economic distress in recent years, and its recovery efforts have been hindered by the limits on its political power. A 2012 referendum demonstrated the paucity of support for the commonwealth’s current governance framework. The path forward is complicated, however, by disagreements over the direction that reform should take and by the need to secure federal approval. Thus, recent events make the need to reconsider the doctrine and its alternatives particularly pressing.