In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: the legitimacy of the unelected Supreme Court.
-President Obama, at a White House news conference on April 2, answering a question about the prospect that the Supreme Court might strike down some or all of the new federal health care law.
"This Court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once it gives the last word, is well on its way to becoming one of the most divisive in modern American history."
-New York Times columnist Maureen Dowd, in an op-ed commentary, "Men in Black," in the Times on April 3.
During the Constitutional Convention in Philadelphia, the delegates spent several days in July 1787 debating how to set up the Supreme Court and other federal courts in the new government. No one spoke up in favor of electing the judges. It was commonly assumed that they would be appointed to the bench, and the only issue was by whom.
And, with comparatively little debate, the delegates agreed that federal judges-including members of the Supreme Court-would have lifetime tenure, "during good behavior." That was the practice under existing state constitutions that the delegates most admired and wanted to imitate.
When the new Constitution was being promoted for ratification, Alexander Hamilton wrote in in Federalist Paper No. 78:
"If... the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."
Gordon S. Wood, probably the most highly respected historian of the Founding Era, has written that "the most dramatic institutional transformation in the early Republic was this rise of what was commonly referred to as an 'independent judiciary.' It is a fascinating story still not fully told."
Wood has also noted that, with the jealousy of the Founders about having a government that was directly responsive to the people as their agents, they actually believed that an independent judiciary would work as much on behalf of the people's interests as would officers in the other branches of the new government.
The idea that judges would actually be more accountable if they were elected rather than appointed got its start in the Progressive era, when widespread mistrust of corruption in government led to a good many citizen reforms, including the grant of power to the people to write their own laws directly through ballot measures. But that was a trend that never gained much favor in contemplating how federal judges should be chosen.
And, with the increasing polarization in American politics, it appears to be quite easy for one-issue groups to mount a campaign to oust an elected judge as punishment for ruling wrongly on an issue dear to such a group. Three justices of the Iowa Supreme Court lost their reelection campaigns in 2010 for having voted-as part of a unanimous court-in favor of same-sex marriage.
After that vote, Joseph R. Grodin, a former California Supreme Court justice who had been denied reelection in 1986 because of votes he had cast against the death penalty, remarked: "I think the damage is not on judges, but that courts will come to be seen and judges will come to be seen as simply legislators with robes."
Among scholars who want the U.S. Supreme Court changed, most want term limits, not elections. The reason seems obvious, given the politics of the day.
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.
Follow Lyle Denniston on Twitter: www.twitter.com/ConDailyBlog
There should be an effective way to remove corrupt, inept and overly creative inJustices. No, that shouldn't apply to those making only unpopular decisions, just to those that creatively and aggressively apply their own spin on the law.
All the other branches of government have a means whereby officials can be removed. It's time this concept was also applied to the unSupreme Court.
It's been shown, repeatedly that inJustices are all too human. This is an asset and a liability. When their fallibility and human-ness is clearly all too apparently a liability, there should be a process to remove them. Note that I typed process.
What I would like to see is term limits: let's impose a 7 or 9 or 11 year limit on their term. At the end of that term; they could be renominated by the sitting President and would have to go through another Senate hearing where they could be questioned before they are voted on. If the Senate disapproves their nomination, it would then be up to the President to find another candidate.
Term limits would be odd years so that their term might expire in different successive administrations. Thus, a judge originally nominated by a Republican might face a Democratic president who would have to decide whether to re-nominate him or not.
If we get a judge who is a real loser, at least term limits would limit the amount of damage they could do before they were replaced.
Simply nominate older Justices.
Scalia has been on the Court for 25 years. 25! He was nominated and seated at the ripe old age of 50.
The problem is that the Presidents take the opportunity to put this lasting imprint on our society by putting up younger and younger Justices so there is that long effect. If the Senate put out a general point - anyone under the age of 60 will be hard pressed to win favor - then the President will be cautious on that point. That also gives the Senate more information on the Justices who are being nominated (unlike say Roberts, who was on an appeals court for about 12 days before being put up as a Justice). Finally, the Senate needs to stop playing to the camera on such a nomination.
And every President who gets a shot keeps aiming younger. Sotomayor and Kagen are young, and Obama had nominated a man who was not yet 40 to the 9th Circuit - most likely with the idea of promoting him to the SCOTUS at the first opportunity. Lets guess that Obama would have the chance to do so in his second term... that would have put this guy (at the age of 45!) on the SCOTUS, where he could have been there for 30 or 40 years!
Older nominees. That's the answer, and no amendment is necessary.
IMPO the Supreme Court is already too political, and putting justices into place by popular election would only make that situation worse.
In any field of endeavor, those most familiar with it, know the ones that are best at what they do.
I submit that for the Supreme Court to function as it was intended to, justices should be nominated and elected by a group of their peers. Those who know the law the best, and know which individuals are biased, which are most qualified, and which are not.
So much for the ideal situation.
Human nature being what it is, the courts will ALWAYS be flawed, because people are flawed. Any system is subject to the whims of corruption, and corruption currently controls our legislative branch. If the courts are not subject to that yet, they will be, it's only a matter of time.
Power corrupts, absolute power corrupts absolutely, as long as the majority of financial power lies in the hands of a tiny fraction of our people, corruption WILL be the result. In ALL branches of our Government.
That's the REAL reason the U.S.'s record disparity of wealth distribution matters. It's also IMPO the real reason the U.S. is a nation in decline.
The same way it was created in the first place........................................taxes.
Taxes on long term capital gains are 15%. Capital is far more efficient at generating wealth than labor is, it should be taxed accordingly.
"Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration." -Abraham Lincoln
When some can make millions of dollars a year, and pay 15% of their income in taxes, while a working man making just $34,500 a year pays more than double that rate, then there is something wrong with our system.
It penalizes those who work for a living, and subsidizes those who don't.
Not to hard to see why Congress can't balance the books, when they give preferential treatment to those with the most, in a Quid Pro Quo for campaign money.
IMPO we have the worst government special interests money can buy..........and it shows.