Great post, John. I agree that the courts, and especially the Supreme Court, have too much power. If the justices did follow their oaths to uphold the Constitution, maybe none of this would be a problem, which means that Congress needs to work harder to confirm judges that will follow that oath.

With all the new cries of McCarthyism and fascism, I think that if Congress did something to restrict the power of the courts, there would be a gigantic outcry amplified by the media, whether or not it's the right thing to do.

Given that President Bush's latest attempt to reign in courts was to change the Constitution - the ultimate smackdown on judges - he must think that none of these other options are very viable.

great post. i'd only point out that congress does have the power to override the court - they can do so by passing a constitutional amendment.

when i read roper last week, i didn't get the impression that it was based on international law. rather, it seemed to be that kennedy said "5 states have changed their laws w/ respect to this, so that evidences a change in societal norms," and then later threw the international law stuff in to "support" his decision on moral grounds but didnt rely on it. my complaint at the time was "why even include it?" (i was arguing on IM while reading, with a person who knows how i feel about citing to intl law.) my quick reading of the case may have missed something, b/c i've since heard law professors criticizing the decision for "relying" on intl law. maybe he can be said to have relied, maybe not - i'm just saying, that wasn't how i read it. in any event, i didnt think it was relevant and shouldnt have been included.

interestingly, i saw liberal legal scholars on tv & on radio all taking the same approach: they agreed with the outcome, but not with the reasoning, if the decision can be said to be reasoned at all. at least one prof, johnathon turley on fox news, cautioned liberals from being too excited about the decision, said it was bad law, and bad precedent. he questioned if the court was becoming "untethered" from the populace and from reality.

but his questions raise what i think is a counterpoint to your argument, and that is that there is a great danger in letting uneducated citizens have too much say in judicial appointments, either directly or indirectly.

proponents of abortion cheered roe v. wade b/c they liked the outcome. opponents jeered it b/c they didn't like the outcome. i'm sure that 90% of the people that have an opinion on the matter couldn't tell you what constitutional provisions were implicated in the decision, and whether they thought that the rights cited in roe are acutal constitutional rights.

why should people that could not care less about interpreting the constitution correctly have any say whatsoever? taking the current lifetime appointment system and replacing it with another, say a 12-year cycle, would turn court appointments into a political playing card. i sure appointment allows a candidate to say "elect me, and i'll get roe overturned, i guarantee it. and then re-elect me, and i'll get X ruled unconstitutional."

judicial activism is a problem, to be sure. but i'm not sure that i see any of the alternatives to lifetime appointments as being any more fair or effective.

James, interesting thoughts. A few of my own, in turn:

-It's true that Congress can pass a Constitutional Amendment overriding a Court decision, but in my mind that suffers from two flaws. The first being that the hypothetical Amendment only addresses future decisions by the Court, and does nothing in the here and now. That may or may not be relevant depending on the case's circumstances.

Second, the Amendment process requires a majority of the state legislatures to sign on, something that is (and rightfully should be) difficult. What Levin had in mind is something that would stop an errant Court in its tracks. For example, you mention Roe v. Wade. Let's assume for the sake of argument that the decision went wildly against the sensibilities of the country. By the time a Constitutional Amendment could be passed (if at all), how many abortions would be performed? And using the Amendment process as a way to check the Court seems a little ham handed to me. Amending the Constitution should be hard, else we end up with very odd documents like, oh, Virginia's constitution.

-I have to say that, gut level, I sympathize with your statement:

"...[T]here is a great danger in letting uneducated citizens have too much say in judicial appointments, either directly or indirectly. "

I'm on record as saying I don't understand what the allure is of total and complete voter participation, as if the mere act of voting is somehow imbued with inviolable mystic morality. But I'd say that your statement is more of an argument against uneducated voting instead of having The People enjoy a more direct voice in the judiciary. But at a certain level, don't we have to cede to The People?

I think we're at a crossroads with this issue. Are we going to honor the idea of representative government, or aren't we? If we're going to let five lawyers exercise what amounts to unlimited veto power over the Constitutional actions carried out by our representatives, then why bother with representative government at all?

-Speaking to judicial terms, I think the process is already imbued with political machinations, only right now it's behind closed doors. For example, check out the inane questions the Judiciary Committee gives to nominees. In fact, before the term started we had Arlen Specter proclaim what a judge had to promise before he'd get a fair shake in front of the committee. At least a judge promising something to the electorate is open and honest, and at least he'd be subject to some kind of accountability.

My take on the term revision would be that judges not stand for general election, but would instead continue to be nominated and confirmed as they are now. The difference would be when a judge starts to go crackers (yes, I'm thinking of Blackmun here) there's at least some recourse in the system.

-On a closing note, I do want to be charitable and note that the "cruel and unusual punishment" phrasing in the Constitution does lend itself to widely varying interpretations. Does it mean "cruel and unusual" as of 1789? Back then, locking someone outside in stocks wasn't that big of a deal, but I personally think it's a Bad Thing(tm) and I think most people agree. So is it one of those things that evolve over time, and we have to continually examine it? There's a reasonable argument that it is. My main beef is that international law and opinion should not enter into it at any level, even if it's supporting the decision of five states to change the law. Aren't the norms supposed to be American norms, and not French? See, the federalist in me is fine with Georgia being Georgia, but let's let Montana have the same privilege. I think this decision threw that perspective out the window, and I think that's unfortunate.