The greatest assault on our liberties isn’t necessarily coming from the Executive or the Legislative branch. The U.S. Constitution doesn’t truly provide for ‘lifetime appointment’ of federal judges, but rather, as stated in Article 3, Section 1: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
It is coming instead from the U.S. supreme Court. And yes, I did leave the word ‘supreme’ uncapitalized as ‘Supreme Court,’ is not a proper noun according to the U.S. Constitution; while ‘Court’ is the true proper noun, ‘supreme’ is merely an adjective.
Also, a judge can and should be removed from office if he or she fails to act with ‘good behavior,’ and this includes our supreme Court. Regardless of whether those who wrote the Constitution expected the supreme Court to attain the degree of authority it now holds, the Framers would be horrified by broad, autonomous power vested in lordship-like individuals for decades on end and their so-called ‘good behavior.’
In March of 2016, Justice Ruth Bader Ginsburg heard an abortion suit stemming from a Texas law that she was openly critical of soon after it passed. In the 1980s and 1990s Justice Anthony Kennedy along with six of his colleagues accepted dozens of paid trips from West Publishing, a regular high court litigant whose arguments the justices often favored.
In 2011 the court handed down a 5-4 decision in a major class action suit, Wal-Mart v. Dukes, and Chief Justice Roberts voted with the majority that sided with the retail giant – even though earlier that year, three companies where Roberts owned as much as $450,000 worth of shares in filed pro-Wal-Mart “friend of the court,” or amicus, briefs. This amicus issue is not covered by the federal recusal statute, so Roberts was not required to sit out Wal-Mart.
In 2010, Justice Clarence Thomas voted in favor a striking down certain campaign finance laws around the time he attended a meeting organized by the Koch brothers, who are known for their vociferous opposition to such laws. In 2012 and 2015 Justice Elena Kagan did not step aside from cases related to the Affordable Care Act, though she helped craft its legal defense when working in the Obama White House.
Justices Stephen Breyer and Samuel Alito, along with Chief Justice Roberts have heard more than two dozen cases in the last few years, like Wal-Mart v. Dukes. Not surprisingly, the three have collectively sided with those companies nearly 70 percent of the time.
This is not ‘good behavior.’
As Thomas Jefferson wrote in 1804, “To consider the judges as the ultimate arbiters of all constitutional questions; [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”