Introduction
Remember that game you used to play with your weird cousin Margaret when you were a kid. She would bring you into a room, close the shades, turn off all but one light bulb, maybe put a red towel over it, then break out the magic: the Ouija Board. You had to close your eyes, ask a question, and then mysteriously, guided by the hand of some invisible person who co-inhabited her psyche, Margaret would slowly guide the “planchette” over certain letters. Eventually the chosen letters spelled words which answered your question. Sometimes you were allowed to also touch the planchette, sometimes not. It all depended on how weird Margaret was feeling that day. Then it was time for sunshine and baseball.
Eventually you grew up; if you were lucky Margaret moved to Seattle. Otherwise you just had to let time work its magic. The Ouija Board became harder and harder to find as it moved farther and farther back in the closet obscured by electronic toys, winter galoshes and other random trash. You and Margaret moved on to other things for amusement and answers.
But there were some people, people whom we might call mystics, that did not move on. They stuck with the Ouija Board and other similar portals into the realm of metaphysics and became psychics. If these mystics were lucky, the eked out a living earning maybe $30 a reading channeling messages from the unseen, the unknowable, and translating these messages into modern-day advice, relevant to our day-to-day affairs.
However, not all mystics were relegated to a $30 an hour job. Eight lucky mystics hit the jackpot and got a job paying $256,600 a year. Because they are special mystics, almost wizard-like, they get to wear robes when working. And one super special wizard, the wizard-in-chief, got a job paying even more, $277,700 per year. Because the wizard-in-chief is special, he gets to sit in the middle of all the other wizards wearing his robe when working and when wizard pictures are taken.
Who are these special mystics, these wizards? None other than our Supreme Court justices. And what is the Ouija Board they use to do their job? Nothing other than the United States Constitution. In case you were wondering, the Supreme Court averages 74 written opinions per year. There are nine justices which means that each justice writes about 8 opinions a year. Which means that each justice receives about $32,000 for writing an opinion – not bad for an indoor job, no heavy lifting, as Bob Dole famously said. Now we know why they are not reading tarot cards.
Ouija Board United States Constitution
If you think of our Constitution as a Ouija Board, and the decisions issued by the Supreme Court as a combination of words formed when the justices move the planchette over the Constitution, guided by the hands of the dearly departed, then Roe and Dobbs make perfect sense.
I. You Can’t be Serious, Are You?
Unfortunately, yes I am serious. It is scary all the similarities between a mystic reading a Ouija Board and our Supreme Court justices interpreting the Constitution. Here are some of the similarities.
I. A.
Both Ouija Boards and the Constitution are very old. However, the Constitution is longer in the tooth. The Constitution dates back to 1789, the first Ouija Board appeared in 1891. So the Constitution has 102 years on the Ouija Board, old enough to be its great-grandfather. The 14th Amendment, which gets a lot of air time in both Dobbs and Roe, was ratified in 1868, making it 23 years older than the Ouija Board, old enough to be its father.
I. B.
Both are inscrutable to the common person. To non-mystics, a Ouija Board appears as mere letters arranged in alphabetical order. There is very little meaning in such a sequence. But in the hands of a mystic, a Ouija Board is capable of the most profound messages. To the average person, the Constitution is a sequence of words, many with unconventional connotations, and many with archaic meanings. But in the hands of our Supreme Court justices, the Constitution blossoms with meaning invisible to the average person.
For example can you explain the meaning of this sentence found in our Constitution:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Them? Who? What? Miss Gregory, my high school English teacher, would have bled red over that sentence. Misplaced modifiers, indefinite pronouns, dangling participles, anything else? Can this sentence be saved? Clearly not what we would expect from SCOOP (see II.C.6 below).
However, when called upon, our Supreme Court has taken a shot at deciphering it.
I. C.
Both are commonly used to channel messages from dead people to living people. Ouija Boards summon the spirits of those with whom we want to communicate, typically someone who has taken out a perpetual lease on an apartment in the after-life.
Interpreting the Constitution is often viewed as an exercise in trying to figure out what the founding fathers would say about an issue if they were alive today (our founding mothers having long been muted by history). This judicial philosophy is called “originalism.” In Dobbs, Justice Alito assumed the mantle of an originalist when he wrote:
The Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.”
When our Supreme Court is “guided by the history and tradition” of our past to decide issues pertaining to the present, it is basically saying let the dead hand of the past dictate present policy. To whom do these dead hands belong? Who is responsible for the posthumous prestidigitation that pushes the planchette? Who got a shout out in Dobbs?
I. C. 1.
Sir William Blackstone (1723 – 1780) gets a lot of good press in Dobbs. Sir William, born in 1723, was an English lawyer who, in 1765, published a famous treatise on English law entitled Commentaries on the Law of England. While highly regarded by Justice Alito, Blackstone’s Commentaries were given a distinct thumbs down, twenty years after their publication, by Jeremy Bentham, an English philosopher regarded as the founder of modern utilitarianism, in his book, A Fragment on Government.
I. C. 2.
Henry de Bracton (1210 – 1268), a 13th century English cleric and jurist, is another dead person whom Alito turns to for guidance (I think we know where this is headed).
I. C. 3.
Sir Edward Coke (1552 – 1634) was an English judge and lawyer. Sir Edward was married twice and sired a dozen children (I told you I knew where this was headed).
I. C. 4.
Sir Matthew Hale (1609 – 1676), an English barrister and judge, who turned to the practice of law after studying to be a priest (headed that way for sure).
I. D.
Both are capable of providing contradictory answers. I remember one rainy summer week when I was stuck inside with Margaret. Each day she broke out the Ouija Board and each day I asked whether my cat Tinkerbell would ever return home. The best I recall, on Monday, Wednesday and Friday, Tinkerbell was coming home, but on Tuesday and Thursday, Tinkerbell was a goner. It was all a matter of timing.
Our Constitution appears to answer the question about abortion, like the Ouija Board answered my question about Tinkerbell. It is all a matter of timing. One century you get one answer, next century a different answer. In the twentieth century, the justices who decided Roe, told us that the Constitution guaranteed a woman’s right to an abortion. In the twenty-first century, the justices who decided Dobbs told us that the Constitution did not guarantee a woman’s right to an abortion. Perhaps Tinkerbell left home to get an abortion while the getting was legal.
You might ask, how can this be? How can seven smart justices in 1973 tell us the Constitution says one thing, but then six smart justices fifty years later tell us the Constitution says something else? How can this be?
It is easy to explain.
I. D. 1.
The dead persons guiding the hands of the Roe court were different from the dead persons guiding the hands of the Dobbs court. The Roe court looked to these famous dead persons for guidance.
I. D. 1. a.
Soranos (101? – 200?), an ancient Greek Ephesian, cited in the Roe decision as the “greatest of the ancient gynecologists.” (I am not making this up, now you understand why Roe was begging to be overruled).
I. D. 1. b.
Hippocrates (460 BC – 370 BC), cited in the Roe decision as the “father of medicine” and the “wisest and greatest practitioner of his art” (gynecologists excepted).
I. D. 1. c.
Galen (129 – 216), ancient Greek physician who developed herbal extracts to induce abortions (we know where the Roe decision was headed).
I. D. 1. d.
The dead persons guiding the Dobbs court were discussed in part I. C.
I. D. 2. a.
The Roe court’s planchette hovered over different parts of the Constitution than those parts over which the Dobbs court’s planchette hovered. The Roe court’s planchette hovered over sections of the Constitution containing the word “person.” It also hovered over the First, Fourth, Fifth and Fourteenth Amendments. The Dobbs court’s planchette fixated on the Fourteenth Amendment, excluding other Constitutional sections. Perhaps this difference in size of constitutional territory explored explains the difference in outcome between the two decisions. The wandering planchette of Roe found constitutional justification for the right to abortion; the stationery planchette of Dobbs found no such justification where it landed. Why did the Roe planchette traverse the Constitution, but the Dobbs planchette remain in one place? Perhaps the bias of those dead hands controlling the planchette explains the motivation to wander or to remain.
I. D. 2. b.
Or perhaps this anecdote helps explain the difference between the two decisions. About ten years ago, I got a call from my brother telling me that Margaret was back in town, but he was not sure where she was living. I looked a little bit, made a call or two, but was unable to locate her. I gave up the search. Then my sister told me that Margaret left Seattle because she won a huge jackpot in the lottery and finally had money to move back to the east coast. After hearing that, I looked a lot harder for Margaret and eventually found her. She still had her Ouija Board. Any similarity between the search for Margaret’s whereabouts and the search for a constitutional right to an abortion?
II. How to Fix the Problem
Having demonstrated that Constitutional interpretation is a fancy euphemism for Ivy League lawyers playing with a Ouija Board, what can be done to remedy this situation? Here are some suggestions to fix the system, so it is no longer a game.
II. A.
Nuke the Constitution. That’s right, you heard me, nuke the damn document. England doesn’t have a Constitution, and it’s doing just fine. In fact, one could make a very credible argument, that not only is England doing fine, it has been doing fine for a lot longer than the United States, so maybe there are lessons to be learned from its longevity. England is commonly said to have been founded in 927, which makes it 849 years older than the United States. A proverbial fossil with sovereignty, England is three times the age of the United States. If England has lived to such a ripe old age without a constitution, why do we need one?
Just so you know, severing ties with our Constitution is not a fringe idea. Ryan Doerfler and Samuel Moyn, professors of law at Harvard and Yale Universities, have written that “the Constitution is broken and should not be reclaimed.” In his book, “The Broken Constitution: Lincoln, Slavery and the Refounding of America,” Noah Feldman argues that Abraham Lincoln departed from Constitutional precedents which he believed were destructive to a democratic society.
II. A.1.
Maybe we should appoint a monarch. Why stop with nuking the Constitution? Why not go all in on being like the Brits? After all, they gave us the Beatles and the Rolling Stones, not to mention Downton Abbey, Harry Potter, and tea and crumpets. Perhaps the key to longevity, peace and harmony is having a titular figurehead the country can look to in times of need, when that country does not have a constitution. Perhaps it helps if that figurehead wears outlandish hats, but maybe that is not a job requirement. Now hear me out on the next suggestion. What about appointing Donald Trump as king?
Think about it. Many have already coronated him. It would give him and those who revere him a measure of legitimacy and that might shut them up. He would have a title with no real power. Perfect! Mar-a-Lago could become the U.S. version of Buckingham Palace. The Proud Boys would be the guards to the palace. Rudy G. would be the court jester; beware, back-slapping gestures not allowed! It is all falling into place. Throw a dog a bone and it is happy, preoccupied, and no longer a nuisance. Think about it.
II. B.
Keep the Constitution, but nuke the ability of the Supreme Court to declare a law “unconstitutional.” Ironically, nowhere in the Constitution is the Supreme Court given the right to declare a law unconstitutional. Rather, it is a power that John Marshall, our first Supreme Court chief justice, divined in 1803 when he put his fingers on the planchette. Many commentators have questioned the legitimacy of this power, called judicial review. Some have described in great detail the specifics of the case, Marbury v. Madison, which gave birth to the concept of judicial review. Some legal scholars suggest that John Marshall was not the judicial genius history portrays him as, but rather was a person trying to bail out his brother who may have committed perjury. Necessity is the mother of invention. Whatever its genesis may have been, judicial review is now embedded in the job description of a Supreme Court justice. Perhaps it should be expunged from the record.
II. B.1.
In fact, one can attribute the consequences of judicial review to our current dilemma regarding abortion. Justice Ruth Bader Ginsburg did. Justice Ginsburg, a pro-abortion advocate, believed that Roe set back the pro-abortion movement. In the majority opinion of Dobbs, Justice Alito cites Justice Ginsburg twice to support the argument that Roe was bad law. In 1992 Justice Ginsburg opined that Roe had halted prematurely the legislative process to legalize abortion. Roe arose as a constitutional challenge to a Texas criminal law that restricted a woman’s access to abortion. Based on its power of judicial review, the Supreme Court declared the Texas statute unconstitutional and then went on (and on and on, according to Justice Alito) to describe a woman’s right to an abortion based on a tri-semester timetable.
Justice Ginsburg argued that if the Supreme Court had not decided Roe as it did, it would have been incumbent on state legislatures to legalize abortion, and that a legislative resolution to the abortion debate was preferable to a judicial resolution. She believed that Roe stopped the growing momentum to enact laws legalizing abortion. She was prescient. Underlying her argument was the belief that a court should not exercise the power of judicial review to invalidate a law: that the legislature speaks for the people more directly and faithfully than the judiciary.
However, many commentators have and would argue that Justice Alito has egregiously misconstrued the words and actions of Justice Ginsburg, twisting them 180 degrees to falsely buttress the majority decision in Dobbs. In a 1992 article in the New York University Law Review, Justice Ginsburg stated: “Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.” Linda Greenhouse has written that Justice Ginsburg’s concern over the impact of Roe was motivated by her passion for the cause of a woman’s right to abortion. For Justice Alito to lay the foundation for Dobbs on the words of Justice Ginsburg is to attribute words and beliefs to Justice Ginsburg she never would have uttered or embraced. Something an originalist (see II.C.) would never do.
II. C.
Keep the Constitution, keep judicial review, but nuke originalism. As discussed above, originalism is a school of constitutional interpretation that says when moving the planchette over the Ouija Board, you should hover over the same letters that the authors of the Constitution would have hovered over. In his majority opinion in Dobbs, Justice Alito devotes most of his analytical heavy lifting to answering this question. Is the right to an abortion contained in the meaning of the word “liberty” as “liberty” is used in the Fourteenth Amendment? The Fourteenth Amendment states in part, “nor shall any State deprive any person of life, liberty, or property, without due process of law …”. If the right to an abortion was a liberty enjoyed by citizens of the United States in 1868, then today no state, such as Mississippi, can take away that liberty.
In Dobbs, the Supreme Court, led by Justice Alito, went on a quest for the holy grail. The holy grail being the meaning of “liberty” as used in the Fourteenth Amendment. Informed and guided by his originalist beliefs, Justice Alito definitively concludes that there was no way the authors of the Fourteenth Amendment meant to include the right to an abortion as a personal liberty. The word “liberty” appears 86 times in his written opinion; the words “Fourteenth Amendment” appear 81 times. The lynchpin of Alito’s opinion is found in this statement, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
Justice Alito is probably right. When the Fourteenth Amendment was drafted, abortion was probably the furthest thing from the minds of its authors. But these questions remain: So what? Who cares? Why should this dictate our views on abortion today?
II. C. 1.
The premise of originalism makes no sense. Basically originalists look to the words of the Constitution to inform them about decisions to be made today. Originalists use the Constitution as an instruction manual to guide our lives today. The Constitution was written 233 years ago. When was the last time you turned to a 233 year old instruction manual for guidance? The instructions that came with my cell phone last year are already out-of-date. In fact, most products no longer come with instruction manuals; instead you have to go to the Internet to find the current rules of use (see II. A., Nuke the Constitution).
II. C. 2.
Don’t do as I say, do as I do. Originalists believe the answers to today’s questions lie in words written over 200 years ago (or in the case of the Fourteenth Amendment, 156 years ago). Originalists believe that to determine how our founding fathers would answer today’s questions, we need to read their words. We need to do as they say.
I disagree with that approach. I think it is more instructive to look at what they did, not what they said. When faced with making a decision about whether to remain an English colony or declare independence, our founding fathers did not look to documents written 233 years ago, as we do today. No, they nuked the established regime and started a new country. They drafted a new instruction manual that made sense to them in 1789, that was responsive to their needs in 1789. Our founding fathers did not write that instruction manual, the Constitution, by asking what did politicians and lawyers from 1556 think (they could have, for example looked to the Magna Carta (1215)), but by thinking for themselves and creating laws that solved the pressing problems of 1789.
If we do today what our founding fathers did 233 years ago, we would not be looking to the past to control the behaviors of today. We would be creating solutions that are relevant to today’s problems. To slavishly interpret the language of our founding fathers to inform our answers to today’s problems is to grossly misinterpret their actions.
II. C. 3.
Don’t believe what you read; originalists can be unoriginal when it suits their needs. As we have seen, Dobbs became an exercise in ruthlessly deconstructing the meaning of the word “liberty” in the Fourteenth Amendment. Without proof that the drafters of the Fourteenth Amendment considered abortion a liberty to be protected, Justice Alito refused to protect a woman’s right to an abortion. Essentially Justice Alito conducted an inventory of possible Fourteenth Amendment meanings of the word liberty, and concluded that the right to an abortion was not in that inventory.
If ever there was a word that begged for an inventoried definition, it would be the word “Arms” as it is used in the Second Amendment. Only one sentence, the Second Amendment states:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Does the Second Amendment give the people the right to carry handguns, sawed-off shotguns, or semi-automatic weapons for “self-defense?” I don’t see the word “self-defense” in the text of the Second Amendment. Nor do I imagine that the authors of the Second Amendment had in mind when writing that amendment anything other than muskets and flintlock pistols. But five days after deciding Dobbs, Clarence Thomas, writing for the majority of the Court in New York State Rifle and Pistol Association v. Bruen, the very same majority who stood behind the Dobbs decision, stated that the Second Amendment protects, “an individual’s right to carry a handgun for self-defense outside the home.” So much for conducting that rigorous inventory.
II. C. 4.
Originalism is nothing but a philosophy of copping out. Originalists are cop-out artists. Instead of standing up for what they believe and declaring it their own opinion, they attribute the opinion they espouse to someone else, who has usually been dead for at least 200 years. Everyone can see through this ruse. Justice Alito does not believe that women are entitled to abortions. But instead of being a stand-up person and telling us what he believes, Justice Alito couches his opinion as the opinion of someone who wrote the Fourteenth Amendment. In Dobbs, Justice Alito purports to deliver to the people of the United States the message of the founding fathers on the question of abortion, reprising the role of Moses delivering the Ten Commandments to the people of Israel. That is wrong on so many different levels.
II. C. 5.
The shelf-life of an originalist is very short. Originalists will soon be replaced by Google’s Chatbot. Originalism boils down to this. If [James Madison, John Jay, Alexander Hamilton – choose one] were alive today, how would he answer the question we are now asked to decide. Originalists try to formulate their answer by examining the writings (not so much the deeds, see II.C.2) of our founding fathers. Then originalists write what they think our founding fathers would have written.
Originalists will soon be rendered obsolete by artificial intelligence (A.I.). Have you read what Google and others are doing with A.I., especially in the field of linguistics? Companies have developed A.I. programs that can write text virtually indistinguishable from text written by a human, other than the fact that A.I. text has fewer grammatical errors and absolutely no spelling errors. The output of these programs is so human-like, that Google recently fired a software engineer because he insisted that the Google Chatbot had a soul. Can’t make this stuff up.
The future of originalism is contained in the Google Chatbot, not in the writings of Supreme Court justices. In the future, originalist content will be developed by feeding the Chatbot all of the writings of our founding fathers. Then the Chatbot will be asked the current legal question. Out will come an opinion from the Chatbot that more accurately reflects the views of our founding fathers, not those of Justice Alito.
II. C. 6.
Consider the hypothetical SCOOP. Assume you are the lead analyst working for Google in charge of the Supreme Court Originalist Opinion Project (“SCOOP”). Google received $5 million to create a virtual James Madison, so that when the Google Chatbot speaks, it will speak the words of James Madison. The question before the Court is whether the Second Amendment prohibits a state from banning persons carrying in public concealed GLOCK G43X Black subcompact pistols. Certain justices on the Court want to know how James Madison would have answered such a question.
The dilemma is what text documents do you permit the Chatbot to read in order to answer the question? SCOOP team member consensus calls for not allowing the Chatbot to read any documents written after 1791 when the Second Amendment was written. The team members insist James Madison would not have any knowledge about anything that occurred after that date. Therefore allowing the Chatbot access to information created after that date destroys the integrity of the project. You follow their advice, ask the Chatbot the question, and it responds with “Cannot compute. I do not know what a GLOCK G43X Black subcompact pistol is.”
You deliver SCOOP’s output to your supervisor who tells you in no uncertain terms that Google was not paid $5 million to deliver the message “Cannot compute.” She says the Supreme Court expected more of a SCOOP than that for its $5 million investment; then she mumbled something about the Supreme Court claw-back fee provision and your bonus. What did she say? She recommends you feed SCOOP documents written after 1791 so it will know what a GLOCK G43X Black subcompact pistol is. You do as you are told, the Chatbot spews James Madison’s words, and SCOOP is hailed as a big success. You get your project bonus. But in the end, you are troubled by the fact that what you delivered is not what SCOOP initially said James Madison would have said. It was as if you had to coax this answer out of SCOOP. Do we know for sure that it was what James Madison really would have said in 1791?
We glossed over one important point. Namely, after you met with your supervisor, what additional documents did you feed SCOOP to enable it to answer the question? Did you give it access to all of mankind’s scholarly works published after 1791? Or some subset? Time and money were factors as a deadline loomed. The more documents the Chatbot reads, the more time it takes, the more budget it consumes, and your bonus goes down the drain. So you made a rational decision to provide access to documents that would teach SCOOP the meaning of a GLOCK G43X Black subcompact pistol. In other words, you limit document access to those documents that teach the Chatbot that the GLOCK is for all intents and purposes the twenty-first century version of muskets and flintlock pistols. The Chatbot now believes that the GLOCK is an “Arm.” Consequently, it delivers the message that James Madison would object to such a statute as it conflicts with our Second Amendment right to bear Arms.
But why does it believe that? Because you self-selected documents that taught it about the function of a GLOCK and nothing else. Your filtering process eliminated tens of thousands of other documents from the knowledge base of the Chatbot. Your filtering process shaped the Chatbot’s knowledge and consequently its message. Perhaps, if you had included documents that discussed contemporary warfare strategies, the composition of present-day armed forces, and the manner in which battles are now fought, SCOOP might have spit out a different answer. But you didn’t make those documents available to the Chatbot, because it did not need them to compute. Without realizing it, your filtering process was an example of confirmation bias, in which you included only data which confirmed your inherent belief, and excluded data that conflicted with your beliefs.
So too did Justice Alito import only certain contemporary facts into his Fourteenth Amendment analysis of abortion. So too did Justice Alito exclude certain other contemporary facts from his analysis, like facts relative to the First, Fourth, and Fifth Amendments, which the Roe court thought were relevant to its analysis of abortion.
II. C. 7.
In other words, pure originalism is a myth. In practice, today’s justices graft certain, highly selective contemporary facts and information upon original constitutional text to make that text speak to today’s issues. It is that arbitrary selection of contemporary knowledge, which varies from justice to justice, that shapes the outcome of an originalist’s interpretation of the Constitution to conform to the bias of the interpreting justice.
.
II. D.
Keep the Constitution, keep judicial review, keep the originalists, but let’s level the playing field. We can level the playing field by acknowledging the true nature of the job of our Supreme Court justices. That job is not to use the Constitution as a Ouija Board guided by the hands of the departed. No, their job is to use the Constitution as a Ouija Board guided by the philosophy of whatever partisan constituency they represent. Is it breaking news that the Supreme Court is political? More so than originalists and pragmatists, our justices are the legal voices of republicans and democrats, of left-wingers and right-wingers, of liberals and conservatives. Why not call a spade a spade, and take these spades into account when appointing justices to the Supreme Court?
No matter the composition of the justices on the Court, some group always believes it is under represented. Right now, democrats bemoan the legacy of Donald Trump: three Supreme Court appointees. Three religious, conservative, gun-loving, right-wing fanatics deciding our future, if we are to believe the democrats. We can take steps to prevent such an imbalance
II. D.1.
Classify judicial candidates by their political affiliation and keep those affiliations in balance. Require all supreme court candidates to check a box as to their political leanings. Make a rule that one side cannot have more than a one-justice advantage sitting on the court at any given time.
II. D.2.
Get rid of this ridiculous lifetime appointment. Getting appointed to the Supreme Court is the cushiest gig since getting tenure as a college professor. No performance reviews, the summer off, paid vacation, and no one grading your papers. A lifetime of sheer bliss. But why the lifetime of unaccountability?
Blame it on the Constitution. Article III, Section 1 of the Constitution states that
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
The phrase “during good Behaviour” has been interpreted (probably by originalists) to mean for life (why not, it’s a cushy job). Let’s assume that is true, that at the time the Constitution was written, our founding fathers intended for judges to be appointed for life. According to the originalists, end of story. Our founding fathers meant that once a person was appointed a judge, he (there were no women judges in the 1700s) remained a judge for life.
Or could our founding fathers have intended something else? Could they have written these words to mean that once a person was appointed a judge, if the country was lucky, assuming he remained a judge for the rest of his life, it might get a good ten or so years out him before he dies? Because back in 1789, the average life expectancy of a white male was 38. If we assume that one did not become a Supreme Court judge until around 30, then the average tenure of a Supreme Court justice was 8 years. Eight years which equals two presidential terms.
Further consider this exception to the rule. In America, we have federal bankruptcy courts. Bankruptcy judges do not serve lifetime appointments. A bankruptcy judge serves a 14 year term, which may or may not be renewed. You might wonder how that is possible given Article III Section 1. The sleight of hand that produces this seemingly incongruous result is that bankruptcy courts are not considered Article III courts. Instead they are considered non-Article III courts, created pursuant to Article I of the Constitution. And apparently in Article I land, “good Behaviour” means 14 years.
Thus there is precedent to define “good Behaviour” not to mean for life, but to mean while one is productive and accountable (which I think is a lot closer to the meaning of “good Behaviour” than for life). If the logic of Article I were applied to Article III, our Supreme Court justices would be replaced before they die by the new blood and new attitudes of other justices. In other words, Supreme Court justices are like most perishable items: they have a useful shelf life, after which they should be discarded.
III.
Appoint Margaret to the Supreme Court. I mean it. Really. After all, she is a Ouija wizard; Tinkerbell returned home, just like she predicted during our final Friday session. I finally located Margaret and visited her. She has become the most wonderful person. Polished up those rough edges and has taken to wealth like a fish takes to water. We had a wonderful time during my visit. At the end of the visit, she went to her closet and brought out the Ouija Board for old times’ sake. While she was getting the Ouija Board, I appreciated just how much Margaret had changed. She really had blossomed as a person; just like a fine wine she seemed to improve with age. It struck me how the only thing in life that is constant is change.
Any questions?
It is so ordered.
Copyright 2022, Peter Kelman, Esq.
All rights reserved.