04/10/2012 10:04 am ET Updated Jun 10, 2012

Constitution Check: Would an Elected Supreme Court Get More Respect?

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.

The statements at issue:

"I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint-that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step."

-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.

We checked the Constitution, and...

Too often in American politics, a critic of something the Supreme Court has done or that it might do makes a complaint about "unelected judges" overturning the work of elected legislatures. The aim, of course, is to deny legitimacy to an institution that does not have to answer to the voters. The problem with such slights of the Supreme Court is that they run directly counter to the constitutional design of the Founding Generation.

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.