Alito’s antics make case for Supreme Court term limits
The most striking detail in the recent investigation by The New York Times into another potential Supreme Court breach is not the evidence that Justice Samuel Alito or his wife may have leaked information to conservative friends in 2014 about the outcome of Burwell v. Hobby Lobby Stores, which extended “religious liberty” to the actions of family-owned corporations.
No, the most striking detail is the extent to which a number of Republican justices,
Alito included, appear to have been the targets of a sophisticated and wellfunded influence operation designed to notch as many legal and constitutional victories for moneyed and conservative interests as the justices were willing to give.
My colleagues in the New York Times newsroom, Jodi Kantor and Jo Becker, describe a kind of revolving door where wealthy donors to conservative causes invite justices to meals, vacation homes and private clubs; where they contribute money to the Supreme Court Historical Society for the purpose of meeting with and influencing the justices; and where the former head of one such influence operation, Faith and Action, went as far as to purchase a building across the street from the court so he could cultivate the people who worked there.
Alito denies the allegation that he divulged any information on the court’s proceedings, telling the Times that the claim that friends of his were “told the outcome of the decision in the Hobby Lobby case, or the authorship of the opinion of the court, by me or my wife, is completely false.”
But I want to shift gears for a moment in any case.
The framers of the Constitution wanted an independent judiciary — strong enough to resist corruption as well as the influence of public opinion. As such, federal judges enjoy tenure during
“good behavior.” Barring impeachment, they cannot be removed.
But what if lifetime tenure, rather than raising the barriers to corruption, makes it easier to influence the court by giving interested parties the time and space to operate? And beyond the question of undue influence, what if lifetime tenure works too well to sever the court from the public, rendering it both unaccountable and dangerous to the popular foundations of American government?
The American Revolution had convinced many ordinary citizens, historian Terry Bouton notes in an essay for the volume “Revolutionary Founders: Rebels, Radicals, and Reformers in the Making of the Nation,” that they had “a right to monitor government, to shape policy, and to regulate government if they believed their leaders were not responding to the popular will.”
Mandatory rotation was especially critical. Most state constitutions of the era made some provision for it. Despite this, there is no provision for anything like mandatory rotation in the federal Constitution.
There is much to be said for the stability and continuity that comes with serving in office or on the bench for long periods of time. And yet, the Revolutionary generation had a point worth considering. Long tenure — and in the case of judges, permanent tenure — can go beyond independence to breed a kind of arrogance and contempt for the public.
Set aside the issue of Supreme Court leaks, and we see this with Alito himself, who has repeatedly gone to public forums to chastise, even mock, his liberal critics, as if he owes nothing to them or the people they represent.