On June 26th, 2015, Senator Ted Cruz wrote an op-ed in National Review Online that called for a constitutional amendment requiring periodic retention elections on Supreme Court Justices.
A retention election is the process used in many states to decide whether or not to retain judges within the state, and subject those judges to elections by the voters and forces them away from the ability to be completely objective in decision-making without concern over public opinion if they hope to maintain their position. Cruz views these elections as the most effective way to deal with an out of control Judiciary branch that has, according to his op-ed, overstepped its boundaries and engaged in judicial activism that reaches far beyond the originally intended scope of the Court.
This idea, however, is one that the framers would have immediately disregarded; in fact, I wouldn’t be surprised if they had laughed at it.
The solace of the Court from political divides provides it with insulation from the partisanship of elections and allows it to function objectively; and furthermore, the Constitution already includes provisions for scaling back the actions of the Court without our modern additions.
Senator Cruz’s piece was written in response to the Court’s decisions on ObamaCare and gay marriage, both of which he cites as massive breaches of the Court’s authority in interpreting the Constitution. This, he says, is extreme judicial activism.Citing Justice Scalia’s argument that words must have meaning in order to remain legitimate, Cruz decries the apparently lawless actions that the Court has taken up; he view them as irresponsible and failing to fulfill their constitutional duties of upholding the Constitution’s limits. Cruz argues that the “power of impeachment” given to restrain the Court does not go far enough, and advocates for elections every eight years wherein the people can decide whether or not to retain the Justices or to allow for a replacement.
Because of decisions that he disagreed with, Senator Cruz is willing to upset the entire balance of power that has maintained our country in-tact as the longest standing nation under the same Constitution that the world has ever seen. That stability is threatened by altering its foundation.
The founders embedded in the Constitution a system of checks and balances that distributes power between the three distinct branches of government and gives each a check over the others to ensure that no branch exerts too much authority.
The Judiciary is checked by the Executive through the latter’s appointments to the Court, and by the Legislature by its ability to confirm or reject appointees and its power to impeach Justices. In this way, the Judiciary is, in effect, wholly controlled by the other two branches insofar as they determine who actually makes it onto the Court and who does not. This is the most powerful check that could be given. Past confirmation, the Justices have the responsibility of making arbitrary decisions regarding constitutionality, and the other two branches are given no input. Their voice came during the Justices’ confirmation process and cannot override the decisions those Justices make once in office.
Alexander Hamilton addressed the issue of an unelected Supreme Court in Federalist #78:
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 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.
Hamilton continues to explain why the complexity of the laws require lifetime tenure to ensure that qualified men (and women) seek the office and are willing to give up “lucrative law practices” in order to obtain it. This, Hamilton proclaims, is pertinent to stability; even the possibility of a constant change in the Court’s makeup would subject it to the political wills that too often rule the other branches. To secure the validity of the Constitution and the rights of the people that are protected by it, the Court must remain utterly objective to political battles.
The constitutionality issue isn’t even the only barrier to Cruz’s idea of judicial retention elections. As Hans A. von Spakovsky, head of the Heritage Foundation’s Election Law Reform Initiative, points out, “Even when a judge is atrocious, it is too hard to raise money or get critics involved in trying to fight someone who doesn’t have an opponent.” Couple this with the fact that a majority of Americans can’t even name one Supreme Court Justice, and you have a virtually irrefutable argument against Supreme Court retention elections.
Creating cyclical elections for the Supreme Court would allow the makeup of the Court to change every few years as the ideological leanings of the population evolve over time. This hardly allows for a stable Judiciary; it allows a new mindset and approach to take hold and be uprooted relatively quickly, and threatens stare decisis by allowing a rotating Court with little constancy regarding its members.
I can appreciate Cruz’s sentiment that the American people should have a say in who sits on the Supreme Court and makes arbitrary decisions that bind the entire country. However, I would contend that we already do have a say in that– that’s what elections are for.
We elect the president and we elect each member of Congress; and since the members of these two branches directly choose the members of the Court, the American people do indirectly choose who will fill those judicial seats. The American people are responsible for the research that an informed vote requires, and an element of that research includes the beliefs and ideologies held by each candidate that will suggest what type of Supreme Court nominee he or she is likely to nominate and support. Even without a direct election, the American people still play a role in the judicial selection process.
I see no constitutional justification for altering the entire foundation of our constitutional republic by imposing a political process upon the only semi-objective piece in our American puzzle. It goes without saying that the Court is already indeed political, but instituting elections would open the door to a new type of partisanship that would devalue the Court and degrade it to little more than a third bureaucracy in Washington. We have already been given constitutional avenues for checking the power of the Judiciary, and electing the wrong individuals to the other two branches is no justification for obstructing the processes of the third.
In light of Justice Scalia’s death and the swirling talks surrounding the Supreme Court, I’ve reached out to the Cruz campaign and asked whether he stands by this call for a constitutional amendment altering the Court’s foundations. I’ve yet to receive a reply at publication time, but will update this piece if and when I receive an answer.