In listening to the back and forth in the discussion of the oral arguments Bostock v. Clayton County and Harris Funeral Homes v. EEOC it occurred to me that over the period of the last several generations there has been an ongoing battle about the role of the Supreme Court that should be debated openly.
I think the Supreme Court should be rendering neutrally applying interpretive principles in full recognition that perfect neutrality is impossible. Simply because human beings are human beings does not mean that it is impossible to apply interpretive principles in a neutral fashion. I think that the courts should follow the law and leave the political decisions to the Congress.
Increasingly, I think it’s apparent that not everyone agrees with that role for the Supreme Court or, indeed, that justices should be bound by established law, precedent, or anything other than their own consciences.
So, here’s my question. If Supreme Court justices are to be political actors, should they be subject to the same review as other political actors? I.e. should they stand for re-election? It could be just a yes/no for retention as it is here in Illinois for judges or it could be a full-fledged election and it could be every 2, 4, 6, 8, or more years.
Should Supreme Court justices stand for election?
Could they fundraise and campaign?
The networks would love it.
My preferred solution would be to reduce legislating from the bench. But check out the questions asked during confirmation hearings. A willingness to legislate from the bench is practically becoming a litmus test.
And the hotly contested issues involve sex and reproduction.
Would the founders not be astounded?
Elections would be better than the lifetime appointments we have now. Either every 4 years or 6 years.
Steve
Yes, just what we need – a de facto 9 person legislature that is co-equal to the other two legislatures and to the Executive. Splendid idea!
We presently have a Supreme Court that, despite its constitutional boundaries, is now superior to the other two branches. Either we need to start impeaching Supreme Court justices or they need to be made answerable in some other way.
I disagree they are superior to the other two branches. The problem is the other two branches are failing to fill their mandates. Activists can’t get what they want through legislation or EO so they turn to the courts. Defenestrating the Supreme Court and turning it into a 9-person super-legislature won’t fix that.
I agree with Andy. And Dave. If the Supremes insist on applying their feelings rather than the law, what is the law worth?
Andy- I think you are right that they should not be superior, but in practice they are clearly superior to Congress and often superior to POTUS. The reality is that our government is really run by the executive branch and SCOTUS for the most part with Congress mostly supine. If judges are going to be partisan like everyone else, why do we leave them in office for 30 years or longer? How soon until we get a nominee who is still in law school, but has the correct political views? To babe clear, this goes way beyond SCOTUS. It should include all of those other lifetime judges (who make even less of pretense at hiding their partisanship than do SCOTUS judges).
Steve
Steve,
I fail to see how entrenching partisanship in the judiciary solves the problem you’ve identified.
Andy- It is already entrenched. With lifetime appointments. So we get 40-50 y/o judges with little experience but with the correct political background. How would holding office for 4 years at a time make it worse? In some ideal world we find some way to have judges not be partisan, but I dont see how to get there.
Steve
Steve,
“How would holding office for 4 years at a time make it worse?”
Justices running for reelection every four years would not make it worse? Justicies campaigning (and therefore making promises to the public), getting support from dark money groups, etc. Basically you be handing lobbying groups the ability decide what the Constitution means.
There’s a reason no sane country elects judges to an “independent” judiciary. For all the problems with the nominating process currently, they’d pale in comparison to the problems we’d get by electing them instead.
A much better alternative is either a fixed term length, a mandatory retirement age or both.
I would prefer a fixed term length also, but that wasn’t the question. (Setting a mandatory retirement age just means we will get even younger judges.) We already elect the large majority of our state judges. That was initially adopted to try to achieve better judicial independence and decrease partisanship, along with the idea of accountability. It may have worked for a while.
Anyway, I will concede that it could be worse, but I think it much more likely it would either not change things or make it slightly better. Lobby groups already decide the meaning of the Constitution anyway. SCOTUS (and other) judges are married to political activists. They take vacations, go to dinners and attend weddings of/with other political activists. They dont even pretend to try to look independent.
https://today.law.harvard.edu/book-review/in-new-book-shugerman-explores-the-history-of-judicial-selection-in-the-u-s/
Steve
Most judges in the United States are elected. I guess we’re not a sane country.
Dave,
I meant high court justices, not all judges.
And no, we aren’t a sane country.
I can just see the gang in Washington salivating at the prospect of appointing every judge in the country, right down to traffic court judges.