Now that the U.S. Supreme Court is back in session against a backdrop of political turmoil, it is set to provide some drama of its own.
The first case on its docket, McCutcheon v. Federal Election Commission, confronts the question of whether to preserve limits on aggregate political contributions by individuals to all candidates, which currently stands at $123,200. The limit was put in place in 1974 and upheld by the Supreme Court in 1976 in Buckley v. Valeo.
In comparison to the landmark Citizens United ruling of 2010, which opened the door to massive political contributions by corporations, associations, and labor unions to Super PACs and other entities, McCutcheon seems minor, but what makes it problematic is the likelihood that this case, like its predecessor, will turn as much on the political ideologies of the Justices as on Constitutional law. At heart, the case is about deciding how much influence private individuals should be allowed to have over the government and what constitutes corruption, both of which fall along clear party lines in the Roberts court (several conservative Justices have already called for the limits to be removed).
This is not surprising, given the highly politicized fights over the Constitutionality of the Affordable Care Act and DOMA, but this effectively turns the court into a political arena rather than a legal one; and neither is this phenomenon limited to the highest court in the land.
To be fair, judges are not solely responsible for this. Presidents of both parties have routinely encouraged activism by stacking the Supreme Court with Justices favorably disposed to their personal views. A common gambit has been to increase or decrease the number of Justices - which is fixed by Congress. This method was used by the Republicans after the Civil War to prevent Democrat Andrew Johnson from making new appointments who could hurt the anti-slavery agenda, by a Congress friendly to Ulysses S. Grant to permit him to restore the government's authority to issue paper currency, and even attempted by FDR in 1937 in order to appoint judges who would favor the New Deal (he failed).
However, even in the absence of political influence, some judges blatantly interpret the law to fit their world view on issues ranging from gun control, abortion, and pollution to workers' rights and even divorce. Such judges do not provide justice but promote agendas, which violates the spirit of the separation of powers and leads to dysfunction. It does not matter if the beliefs that judges apply are liberal or conservative or whether a ruling appeals to the zeitgeist of the time. Whenever judgments are based on anything but the law, the system breaks down, and the failure to obtain justice is an impediment to a fair society.
If laws themselves are flawed or have not kept up with evolving values, then it is the purview of Congress to change them and then the responsibility of the courts to interpret or uphold their legality. The place for activism is in politics, in the streets, and on the Internet, but not in the courts.
That brings us to the question of how to mitigate judicial activism.
The problem lies in the difficulty of removing a sitting judge from the bench. The means available to politicians and the public include impeachment, voting out of office, and judicial reviews, but all these are extremely difficult to execute and notoriously uncertain in their outcome. In addition, most judges receive their appointments pursuant to Article III of the Constitution, which states that: "judges, both of the Supreme and inferior courts, shall hold their offices during good behavior." This basically means that unless a judge is caught accepting a bribe or something equally egregious, he or she can retain their seat for life. The integrity of their rulings is not really a factor.
Keeping this mind, there are two possible ways to address this:
The first mechanism involves term limits. Judges, no matter how noble their character or impressive their legal resume, are not infallible. Respect for the robe is one thing, a divine right to tenure is quite another. The terms should be long enough to enable judges to preside impartially without the fear of political repercussions - perhaps 12-15 years - but not so long as to allow the corruption of the judicial process by individual judges indefinitely.
The other method of guarding against judicial activism would be an independent department that reviews, and investigates, judicial verdicts on an annual basis for all judges. The purpose of the panel would be to identify recurring patterns of judicial bias, and then to act on them. The way the system is currently set up, most citizens are so intimidated by the courts that they are either afraid to accuse a sitting judge of judicial misconduct or, if they do file a petition, it is highly unlikely that the system will take their word over that of the judge. Monitoring judicial conduct and making it possible for judges to be removed 'for cause' will force a discipline upon judges to rule more fairly.
The biggest danger to a democracy is the emergence of a ruling class that runs the nation according to its personal beliefs. The separation of powers is meant to guard against this, but when the judiciary becomes a power center in itself, it nullifies these checks and balances. It is time, therefore, for Congress to take steps to rein in judicial activism and to ensure that the judiciary is held to a higher standard of accountability to go with the respect that is accorded to it. At best, this would involve a broader interpretation of the meaning of "good standing" in Article III, but it might also require a Constitutional Amendment to impose reasonable and prudent limits on the power of the judiciary.
That would not be an overreach, but an evolution of American democracy.
SANJAY SANGHOEE is a political and business commentator. He has worked at leading investment banks Lazard Freres and Dresdner, as well as at multi-billion dollar hedge fund Ramius. His opinion pieces have appeared in FORTUNE, Bloomberg Businessweek, Christian Science Monitor, and Huffington Post, and he has appeared on CNBC's 'Closing Bell', TheStreet.com, and HuffPost Live on business topics. He is also the author of two thriller novels.
For more information, please visit www.sanghoee.com