Should Supreme Court justices be elected, rather than appointed?
This is the solution of Republican candidate for president, Ted Cruz (R-Texas).
“In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections,” Cruz wrote. “As a constitutional conservative, I do not make this proposal lightly. … But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels.” [Ted Cruz, in National Review.]
Cruz could not be more wrong.
Cruz, like many people, is unhappy with the Supreme Court’s decisions on gay marriage and Obamacare. However, an elected Supreme Court would have made no difference at all.
On gay marriage, the country is divided. Also, a majority twice elected a president — Barack Obama — who favors gay marriage. It’s also true that a majority twice elected a Congress who opposes gay marriage; but that only shows how the country is divided.
If Cruz fantasizes that a majority can guarantee we’d never have a pro-gay marriage court, then how can he explain that we’ve had two terms of a pro-gay marriage President — and, as things stand now, one or two more terms of another pro-gay marriage President on the way?
As for Obamacare, the country is likewise conflicted and confused. A majority of voters elected Obama in 2008 when he proposed socialized medicine, as part of a broader, quite explicit program of “spread the wealth.” Health care “reform,” unlike gay marriage, was a major issue in that year’s presidential campaign. Likewise, in 2012 Mitt Romney and the Republicans made repeal of Obamacare the central theme of the election. They lost fairly decisively. Yes, it’s true that the 2010 and 2014 elections were also (arguably) referendums on Obamacare, and they were huge Republican wins. But the outcomes only reinforce how divided the country is.
If a divided country produces politicians who favor things like gay marriage and socialized medicine at least half of the time, how can we expect that same electorate to produce anything different on the Supreme Court? Cruz’s fantasy makes no sense, not even on its own terms.
In proposing his idea, Cruz admits, “there aren’t a whole lot of Republicans in Congress willing to stand and fight.” To be fair, Cruz has stood up with admirable principle, at times, when it comes to defending the United States against militant Islam, or repealing Obama’s virtual nationalization of health care. But most Republicans do not side with him, and even overtly attack him for his virtues. These are the Republicans who continue to get elected to office, just as often (or more often) than people such as himself. Again: How would elected Supreme Court justices change any of that?
Cruz’s plan would turn America into a total mobocracy, rather than the partial one it has become. The whole reason America’s framers designed the Supreme Court was to curb or ignore democratic or majority impulses, whenever those desires threatened or violated the principles of individual rights to life, liberty, property or the pursuit of happiness.
James Madison, America’s fourth president and a chief architect of the U.S. Constitution, along with other of America’s founders, published The Federalist Papers at the time the Constitution was written. The following was in Federalist No. 78, authored by Alexander Hamilton:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary . . . may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Hamilton, like other of America’s founders, saw the role of the judiciary branch as unique and essential. Otherwise, they would have simply provided for an executive and a legislative branch.
Part of what distinguishes the judicial branch from the executive and legislative branch is that Supreme Court justices are not elected; they are appointed. Their lack of worrying about election and reelection allows them to interpret the Constitution objectively and without concern for the mob.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Does this guarantee justices will act rationally? Of course not. But the rationality or justice of their ideas depends on their judicial philosophy. If we had more justices who agreed with Jefferson, Madison and the ideas contained in the Declaration of Independence, we would have better judicial outcomes.
Tragically, as the caliber of presidents and legislators has deteriorated (by Constitutional standards), the quality of appointments to the Supreme Court have suffered, as well. Chief Justice John Roberts is a particularly glaring example of just how low the Court has sunk. But do not blame that on the lack of elections. Blame it on the poor or anti-Constitutional ideas of most of our justices sitting on the Supreme Court.
Assuming Cruz is sincere, he’s attempting a short-cut that will defeat him at his own goals. Instead of promising to appoint justices to the Supreme Court (as well as lower court judges) who comply with his particular judicial philosophy, he’s proposing to simply wipe out the judicial branch of American government as we know it.
Hamilton wrote: Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both . .
In other words, it’s not anti-democratic to have a judicial branch. Nor is a judicial branch inherently superior to, or inferior to, the executive or legislative branches of the federal government. The whole purpose here is to provide checks and balances on government, so that the people’s individual rights would be tarnished as little as possible, and — even when undermined — could be restored by future checks and balances via the various branches.
As bad as some of the Court’s decisions have been (I agree with Cruz on the Obamacare decisions, but I don’t agree with him on gay marriage), Cruz’s idea of turning America into a total, undiluted and “pure” democracy would be the final death knell in a republic already floundering to a point where it may already be beyond repair.
America is not suffering from a lack of democracy. It’s suffering from a lack of respect for, and comprehension of, the nature of individual rights. Only good ideas put into practice by thinkers like America’s founders will save us. Elections give us majorities, but they don’t necessarily give us what’s right.
America’s high court is only as good or as bad as the ideas dominating the culture. If you want better courts, get better judges and justices, and better elected leaders to appoint them. First and foremost: Get better ideas about what the nature of government should be, and what “rights” actually are.
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