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How To Restrain The Supreme Court


Judging from the first presidential debate, and possibly stoked by this week’s Kim Davis controversy, the Supreme Court could turn out to be a wedge issue in the Republican primary race. A few candidates, such as former New York Gov. George Pataki and Ohio Gov. John Kasich, felt comfortable citing “settled law” as a way to dodge challenging social issues. Others, most notably former Arkansas Gov. Mike Huckabee, who also expressed support for Davis, have staked out positions less deferential to the court. With only 33 percent of Republicans viewing the Supreme Court favorably, the advantage seems to lie with the court’s critics.

Conservatives want change. Nevertheless, some on the Right warn against pushing too hard for it. Jonathan Tobin of Commentary, for example, argues that conservatives should be fighting to preserve our government institutions, not transform them. Criticizing Texas Sen. Ted Cruz’s recent proposal to subject the justices of the Supreme Court to periodic judicial-retention elections, Tobin writes:

[A]nyone who tries to alter the composition of the court by extreme measures always loses the argument. The Founders would not recognize the legal reasoning used at times by Roberts, Kennedy, and the four liberals who are always happy to accept their votes to form a majority. But the role of the judiciary in our constitutional system must be respected. Conservatives who start to sound like a latter-day version of those who wanted to impeach former Chief Justice Earl Warren because of his liberal decisions are marginalizing themselves.

Is such resignation really warranted? There is a certain irony in Tobin’s making such an argument in this particular context. After all, just a few short years ago pursuing marriage equality would have seemed pointless; it was an embarrassing fringe issue, best kept out of the spotlight. Progressives, apparently, were undaunted. Progressives should not have a monopoly on standing up for what they believe to be right.

Besides, is it really unthinkable that the Supreme Court could be made to undergo a serious structural overhaul in the near future? Why not? It should. Even Justice Scalia in his dissent remarks ominously, “Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.”

Electing Justices Wouldn’t Change That Much

Cruz’s proposal to subject the justices to retention elections has some merit. The Supreme Court does not consider itself bound by the U.S. Constitution, and has not at least since Lochner. But the reason the justices are appointed rather than elected, and given life tenure, is because they are supposed to be custodians of the Constitution. Because the Constitution is what protects minorities from majoritarian institutions such as elections, it made sense to insulate justices from the electoral process and accountability generally. So now that we are all aware that the Supreme Court has ideological as well as constitutional commitments, shouldn’t voters be receiving more of a say on who sits on the court?

Now that we are all aware that the Supreme Court has ideological as well as constitutional commitments, shouldn’t voters be receiving more of a say on who sits on the court?

A strong case can be made that the door to voting for Supreme Court justices has been open ever since the Supreme Court declared sovereignty over abortion politics in America. For more than 40 years since Roe v. Wade, a significant number of people have been casting their vote for president, primarily or exclusively, with the intent of affecting the composition of the Supreme Court. It is a serious, if often overlooked, problem for our democracy that votes being cast for one branch of government are intended to influence a supposedly separate and independent branch of government. Cruz’s proposal would remedy this situation.

Additionally, elections might level the playing field for conservatives. What we have today is a hybrid court—one part judicial and one part ideological. Writing for National Review, Kevin Williamson observed the Supreme Court in fact has devolved into something that more closely resembles Iran’s Guardian Council than anything our nation’s founders might have envisioned. In Iran, the parliament (majles) drafts laws, then the Guardian Council determines whether those laws are a) constitutional and b) in accord with the Khomeinist interpretation of Islam. To ensure the state is guided by both of these authoritative sources, the council has 12 members, six clerics and six jurists.

This is analogous to how the Supreme Court currently functions. The so-called “conservative” justices try to ensure laws conform to the Constitution, while the liberal justices work to ensure laws are consistent with Progressive ideology. Commenting on the court’s invalidation of laws against same-sex marriage on the basis of its discernment of the true nature of marriage, Justice Scalia writes, “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” The court, he may as well have said, is behaving like Iran’s Guardian Council.

Or We Could Abolish the Supreme Court

Unlike Iran, our nation has numerous schools of political thought. Yet progressivism currently is the only ideology represented on the bench, since the “conservatives” are performing a non-ideological function. Voting would ensure some degree of ideological diversity. But lack of ideological diversity is not the root problem. The presence of ideology at all is the problem.

Voting for judges would defeat the most important purpose of the Supreme Court, which is to protect the rights of unpopular minorities.

This brings me to the problem with Cruz’s proposal. It is hard to see how turning judges into politicians would solve the problem of the court’s politicization. Wouldn’t this just institutionalize the problem and transform the Supreme Court into a redundant third house of congress? Voting for judges would defeat the most important purpose of the Supreme Court, which is to protect the legitimate (i.e. constitutional) rights of unpopular minorities. So if we are going to start voting for Supreme Court justices, we might as well just get rid of the court entirely.

Nevertheless, Cruz is right that the Supreme Court needs to be reined in. As Justice Alito warns in his dissent: “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.” If we continue to tolerate progressive activism on the Supreme Court, things will only get worse.

The idea of fundamentally changing the Supreme Court’s complexion is not new. At various times, politicians or academics have proposed altering the tenure of the court’s members, or the way they are selected. There is nothing radical about such considerations. The Twenty-Second Amendment limited the number of terms a president can serve; and talk of abolishing the Electoral College is common. If it is not unthinkable to modify the manner in which the head of the executive branch is chosen, or the amount of time he or she may serve, why is the Judicial Branch any different?

The judiciary has steadily been acquiring more power for itself for decades. If there has been no outcry from the public it is due more to ignorance of what is happening than to assent. Americans pay little attention to the Supreme Court for a number of reasons: the justices do not campaign, the court’s rulings are generally complex or esoteric, and the press has little incentive to cover it.

Let’s Broaden the Supreme Court Bench

As the above quote from Justice Alito suggests, the court will continue to take the silence of the public as a green light to continue advancing its sphere of influence. The only way to address this problem is to generate public attention to the problem of what the court is doing, and put pressure on the court to control itself or risk having the electorate take matters into its own hands. Putting forth realistic proposals for change is one important way to advance that strategy.

Rapid turnover would prevent ideologues from setting up shop and establishing robust interpretive philosophies.

I propose weakening the Supreme Court by having Congress appoint less-established jurists for one-year terms. This solution would improve upon the status quo in at least four ways while preserving the court’s independence, and safeguarding its purpose as defender of the constitutional rights. Here’s what it would accomplish.

Taking the president out of the equation would reduce the impact of volatile social issues on presidential campaigns. Voters would be less inclined to pick their congressional representatives based on the kinds of judges they would appoint, simply because each representative would have so little influence and each appointment would have minimal impact.

Rapid turnover would prevent ideologues from setting up shop and establishing robust interpretive philosophies. Judges would be compelled to interpret cases through the lens of the Constitution simply because they would lack a developed alternative. While some jurists might hold extreme views and seek to develop an unorthodox jurisprudence, such jurists would have a hard time convincing their fellow short-timers that such a quixotic approach would be worthwhile.

The only qualification needed to sit on the Supreme Court should be a proven understanding of the Constitution and U.S. history.

The lawyers who picked the cases for the Court to hear would not actually be the same ones to hear and decide the cases. This would make it harder for any one jurist to shape the “progress” of America’s cultural development to his or her own liking.

Given that the objective is to choose a less-established jurist, Congress would not be limited to picking an elitist, which too often means a Progressive. The only qualification needed to sit on the Supreme Court should be a proven understanding of the Constitution and U.S. history. America does not need rock-star justices like the notorious RBG. The ideal Supreme Court justice is one who is humble and deferential to the Constitution.

Time to Knock the Supreme Court Down a Peg

This last point is perhaps the most important. To gain a sense of just how important, consider this observation from Justice Scalia’s dissent:

[T]he Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

Over time, the Supreme Court has devolved into an unrepresentative body of elites who see themselves as the arbiters of which new values should inform social change. In his Obergefell opinion, for instance, Justice Kennedy tells us, “Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.” He does not mention, however, by what authority he and his four colleagues speak for this new generation. Nor does he explain why he believes his job is to privilege the alleged ideals of one generation over another. But a majority of the Supreme Court evidently thinks the court’s role is to discover and advance Progressive social values over “backward” traditional values.

The Supreme Court’s recurrent efforts to usurp power over elected officials on matters of controversial social issues will not end on its own. The court will not restrain itself in the absence of outside pressure. To exert such pressure, conservatives need to start seriously discussing ways to transform the court; and the presidential candidates would be well advised to start showing leadership on this issue.