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Originally posted by DCJenn
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And the Constitution Party has actually addressed this in its platform. The Constitution does not read (in its "plain language"--as lawyers call it) that Article III judges or justices (which are comprised of the Supremes, US CoA, US Dist Ct, and US Court of IT) are to be appointed "for life." Rather, it provides that an Article III judge or justice is appointed "during good behavior." So, while a Article III judge or justice is always free to retire, the only way to forcibly remove an Article III judge or justice is for the Senate to impeach him upon a showing of bad behavior (essentially, getting caught snorting coke over the body of a dead, underaged hooker, right before leaving to take a bribe). The Constitution Party's platform provides that: "We support Congressional enforcement of the Constitutional rule of good behavior and to restrain judicial activism by properly removing offending judges through the process of impeachment provided for in Article I, § 2 and 3 of the Constitution. Furthermore, Congress must exert the power it possesses to prohibit all federal courts from hearing cases which Congress deems to be outside federal jurisdiction pursuant to Article III, § 2 of the Constitution." Basically, that party would like to see the "good behavior" clause enforced when judges or justices are "activist."
Personally, I think this is a misguided approach. "Activist" is relative. Conservatives freak-out about "activist" judges and justices when they believe that the court overreads the Constitution. However, if it weren't for activist judges and justices, some of the worst judicial decisions would never be overturned. For example, in 1896, the Supreme Court held in Plessy v. Ferguson that separate-but-equal public accommodations were Constitutionally permitted. It was an awful, patently unconstitutional decision. The Constitution provides no such thing. The Supreme Court overread the Constitution to essentially "make up" the result that was most socially acceptable and paletable for the time. It was not until 1954, with the decision of Brown v. Board of Education, that the Supreme Court reversed course and properly interpreted the Constitution. However, if you REALLY believe that there should be no "activist" decisions, then the Brown Court was wrong. Precedent was clearly established and entrenched under Brown. The justices were absolutely being activist...and they did the right thing. While law professors can Monday night quarterback the specifics of the grounds underlying the reasoning in Brown, but the holding was indisputably correct. But, had the justices relied on precedent and not been activist enough to correct an incorrect holding, Plessy would be the law today.
If "activist" means interpreting the Constitution to fit whatever the current morality and feelings of the people happen to be, I don't agree with it. You get opinions like Brown. (And the pretty universally derided reasoning--separate from the holding--in Roe.) But if "activist" means being willing to reconsider bad precedent to make it consistent with the Constitution, I think it is necessary.
But then, that's what scared the crap out of the opponents of Alito and Roberts. They weren't worried about the fact that those guys lean "originalist." They were concerned that those gentlemen were willing to be activist in terms of "correcting" and reconsidering bad precedent--namely, Roe and Casey v. Planned Parenthood and the progeny.
But whatever. I can't see any real effort to amend the Constitution for purposes of limiting Article III appointments.
I personally think the "activist" equivalent of Roe is the current interpretation of the Second Amendment that recently struck down Chicago's gun law and part of the Brady bill. It overturned previous Supreme Court decisions that held that it was constitutional to make some law concerning gun rights (like the machine gun ban case in the thirties). I think that there is a strong political pressure on the right to be absolutist about gun rights. Just as I think there is a strong political pressure on the left to be absolutist about abortion rights. I don't think the court should be political in these decisions but you could probably write a book about the swings the court has taken in response to culture changes over the last 100 years.
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