Ted Cruz Proposes Judicial-retention Elections for Supreme Court Justices
Wants Constitutional Amendment via Congress . . . or the States
Ted Cruz is not at all happy with the recent Supreme Court decisions regarding ObamaCare subsidies and gay marriage, and his solution is bound to be controversial.
He’s proposing a constitutional amendment that would make the Supreme Court justices subject to judicial-retention elections.
Here’s his tweet about it:
I am proposing an amendment to the Constitution to subject #SCOTUS justices to periodic judicial retention elections #BelieveAgain
— Ted Cruz (@tedcruz) June 27, 2015
He also wrote a lengthy piece for The National Review in which he argues that the Supreme Court has rendered decisions that are lawless examples of judicial activism and that undermine the Court’s very legitimacy. Cruz writes:
The Framers of our Constitution, despite their foresight and wisdom, did not anticipate judicial tyranny on this scale. The Constitution explicitly provides that justices “shall hold their Offices during good Behaviour,” and this is a standard they are not remotely meeting. The Framers thought Congress’s “power of instituting impeachments,” as Alexander Hamilton argued in the Federalist Papers, would be an “important constitutional check” on the judicial branch and would provide “a complete security” against the justices’ “deliberate usurpations of the authority of the legislature.”
But the Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.
Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly.
. . . . Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
Keenly aware that he is proposing something quite dramatic, Cruz states his case before suggesting that if Congress will not act on this proposal, the people will:
As a constitutional conservative, I do not make this proposal lightly. I began my career as a law clerk to Chief Justice William Rehnquist — one of our nation’s greatest chief justices — and I have spent over a decade litigating before the Supreme Court. I revere that institution, and have no doubt that Rehnquist would be heartbroken at what has befallen our highest court.But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law. And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the people for an Article V Convention of the States — to propose the amendments directly — will grow stronger and stronger.
Andrew McCarthy, also writing at National Review, suggests we all just “drop the charade: the Supreme Court is a political branch not a judicial one.” It’s hard to argue otherwise this (or any other) week.
McCarthy also makes the case for making the justices be in politics, not just doing politics from the bench:
And it is not so much that they [the Court’s lefties] move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.
It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.
But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.
That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations. If the justices are going to do politics, they should be in electoral politics.
If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress.
What say you?
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Comments
“I’m not sure, however, that turning Supreme Court justices into actual politicians who must raise money for retention campaigns and stump for the votes needed to retain their seats on the Court will make the Court less political or less prone to activism.”
That’s not the point of the amendment.
The point of the amendment is to give the people recourse from an already political/activist court.
The founders of this Republic never foresaw Supreme Court judges living to such advance ages that they would be ruling in their senility. Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor, I’m looking at you playing in your mud puddles.
I have no doubt that Ted Cruz is a smart man but you do not need a Constitutional amendment to rein in the Supreme Court. The solution is much easier and less time consuming.
Yes, we are taught the SCOTUS has the ability of Judicial Review from Marbury v Madison. But, the entire authority and scope for the SCOTUS is not found in the Constitution. It is found in the Judiciary Act of 1789.
The branch with the greatest power is Congress. They control the purse strings and it was the belief of the Founding Fathers to make Congress the more powerful branch because they would be the most accountable to the people.
The solution is simple, pass an amendment to the Judiciary Act of 1789. You can add Justices (hello FDR) and you restrict the subject matters the Court can review. The former has been done on a couple of occasions (the original SCOTUS had 6 members).
I believe any attempt to democratize the SCOTUS via retention elections will be fraught with peril.
Ted Cruz is a thoughtful, intelligent man and his words should be studied with the same thought fullness.
But I agree “… any attempt to democratize the SCOTUS via retention elections will be fraught with peril.”
I imagine they would they go right to behaving like the Lying-Double-Dealing; I only voted for cloture – never for the offensive law you and I hate so much, send me money and I’ll work to repeal it;
Self enriching, back door dealing, bribe taking, sellouts who face re-election now.
They already play politics hidden from public view and have for decades. What Cruz proposes at least brings it out in the open.
You’re promoting a myth. Courts are venues for the hearing of controversies at law. When a person brings a complaint against the government to a court, the court is not assuming powers not delegated by settling the controversy, it is doing exactly what the purpose of its existence requires. It is not necessary to extend this authority via an express grant in the Constitution; the authority is inherent in the nature of the courts.
The authors of the Constitution anticipated that the courts would settle controversies over government acts and legislation. Such authority was mentioned in both the Federalist Papers and in Madison’s “Notes of the Debate in the Federal Convention.” At the convention it was remarked by three different convention attendees, and no opposition was raised to their presumption that judicial review was within the scope of the courts.
Federalist Papers
#44
Madison noted that the “success” of acts of Congress would “depend on the executive and the judiciary departments, which are to expound and give effect to the legislative acts.”
Notes of the Debates in the Federal Convention of 1787, James Madison
July 21
Mr. L. Martin:
And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character, they will have a negative on the laws.
Mr. Rutledge:
The Judges ought never to give their opinion on a law till it comes before them.
July 23
Mr. Madison:
A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.
All of the above being said, no court has the authority to order a government to do that which it is not authorized by its constitution to do. This is the problem with “activist” judges – they increase the power of government by judicial decree. But this is quite different from a court telling a government to cease doing that which it is not authorized to do. (In this vein, SCOTUS was wrong to direct all States to recognize gay marriage. But it would have been correct to order all States to cease discrimination against couples based upon their sex or sexual orientation – this would have been telling the States to stop doing something they have no authority to do. So although SCOTUS’ decision in the case was correct, the opinion supporting it is thoroughly flawed, and creates bad precedent. I say this as an aside because I know it will come to someone’s mind.)
Promoting a myth? Not bloody likely.
Outside of being a political junkie, I am uniquely interested in history. When you combine that with my day job, you might understand where I am coming from.
The SCOTUS gets their actual authority from the Judiciary Act of 1789. From wikipedia:
“The Act set the number of Supreme Court justices at six: one Chief Justice and five Associate Justices. The Supreme Court was given exclusive original jurisdiction over all civil actions between states, or between a state and the United States, as well as over all suits and proceedings brought against ambassadors and other diplomatic personnel; and original, but not exclusive, jurisdiction over all other cases in which a state was a party and any cases brought by an ambassador. The Court was given appellate jurisdiction over decisions of the federal circuit courts as well as decisions by state courts holding invalid any statute or treaty of the United States; or holding valid any state law or practice that was challenged as being inconsistent with the federal constitution, treaties, or laws; or rejecting any claim made by a party under a provision of the federal constitution, treaties, or laws.”
Congress has amended this Act on a couple of occasions to increase the SCOTUS to 9; eventually settling at 7. It is why FDR’s move to pack the Court did NOT need a Constitutional amendment.
Congress has the authority over the SCOTUS but has steadfastly refused to exercise their jurisdiction over the Court. Instead, we are treated to ridiculous ideas like “judge retention”. If that were to occur, we shall indeed have judicial tyranny.
The folks who desire term limits for politicians have no idea of the consequences of the foolhardiness of that idea. Yes, you will get rid of the leeching politician, but what remains is the leeching bureaucrat. It is almost as if the folks who use von Hayek as a punchline forget that The Road To Serfdom was predicated on government control of economic decision-making through central planning. Who do you think composes and executes this central planning? Yup, bureaucrats.
I get the desire to revert to the ideals of a democracy but H.L. Mencken said it best when describing democracy:
“Democracy is the theory that the common people know what they want, and deserve to get it good and hard.”
Have we forgotten that we were founded as a Republic? I am starting to think several candidates running for POTUS under the GOP banner have forgotten that fact.
I have also had the distinct honor and pleasure of attending a speech last year given by Justice Scalia.
He spoke of the Court and how the Court does and does not define Original Intent. He made the comment several times that the members of the Court can continue this path as long as Congress allows them to do this. He knows the answer lies within the Judiciary Act of 1789, not with a Constitutional Amendment.
Restricting subject matter jurisdiction via the Judiciary Act of 1789 is just the beginning.
Ignore Obergefell like Lincoln ignored Dred Scott.
Cruz’s idea might be worth a try but a word of caution: If you think the left was vicious toward GW Bush, wait until you see what they do when they realize they can get Scalia voted out!
I’d make it even simpler …. Empower the Legislature of any State to revoke the Commission of any Article 3 judicial officer having jurisdiction which includes that State by a 55 per cent vote (no one can ever get 2/3) of the State Legislature. If one wants to get protective empower Congress to override the State’s decision within 30 days.
For Supreme Court Justices — the Legislatures of a majority of the States.
Thus will endeth the judicial oligarchy.
California and Iowa both have some type of vote done about their appellate court judges. California quite wisely booted Chief Justice Rose Bird, because she made it impossible to impose the death penalty, no matter the barbarity of the murder.
Iowa recently booted justices that imposed same sex marriage. Believe it was Iowa.
Giving citizens these options is good, but not good enough. The higher courts so frequently impose the most unjust outcomes, that I think a retention election every 4 years is required.
Let us not forget, aside from the cases that most people are thinking of, Plyler v. Doe and Millard v. Filburn. And I’m sure somewhere, there is a case upholding EMTALA, the law that requires medical professionals and institutions to provide care even when they are not paid. The 13th Amendment is good for blacks, not others.
Oh- and I do agree with Spartan: Congress has the power, both insofar as defining jurisdiction and funding, to rein in the courts.
They damn well ought to be doing it. I’m not religious, but my gosh, this anti-religion crusade of theirs has to go. The idea of loser-pays Section 1983 actions is completely out of hand, and has utterly devastated our country’s attempts in inculcate morality to our youth. Also, any jurisdiction of ANY court, to determine tax-exempt status of churches should be removed, so pastors and priests may speak in their sermons on any topic they desire — ANY topic, including who to vote for.
We need religious values – moral values – to thrive. Although I do exempt homosexuality from this, because I know many of them were abused as children, and can’t help what they find “satisfying.”
Never going to happen unless the SCOTUS somehow miraculously becomes judicially conservative and starts ruling that way.
Why? Because every member of Congress is further to the left than they admit. Every single one. Elites of both parties skew further to the left of their constituents and both sets of elites are closer to each other than to their constituents.
“…every member of Congress is further to the left than they admit. Every single one. Elites of both parties skew further to the left of their constituents and both sets of elites are closer to each other than to their constituents.”
Extremely well-stated and I agree completely!
Term limits without a chance of reappointment to any federal court. Eight and done.
Nine and done, so their election years differ from the national cycle, no coat tailing.
The founding fathers of this country feared the rule of the mob as much as the rule of kings. We have a republic rather than a democracy as a result of their intellect. It seems Cruz does not understand the lesser of two evils.
I would support something less than a lifetime term, say 20 years, just to end the “imperial” court.
Cruz’s remedy is worse than the illness.
First, it would relieve Congress of its duty to impeach any civil officer who commits “Treason, Bribery, or other high Crimes and Misdemeanors.” (Violation of one’s oath of office should certainly be considered a “misdemeanor,” if not a greater offense.) Although “impeachment” by Congress is merely authorized by the Constitution as a remedy to certain problems, the oath of office taken by every Congress person imposes a duty to impeach when the situation demands. By shirking this duty, Congress becomes guilty of the very accusation being leveled at certain justices – violation of their oaths of office. Cruz’s solution would encourage this shirking to continue.
Second, he complains that the judiciary has become a political branch of government. However, his “solution” is to institutionalize it with an amendment that recognizes and accepts the condition. Although I believe Cruz is correct in his estimation of the problem, his “solution” does not cure it, it exacerbates it by making it permanent and it encourages further oath-breaking, because the need to secure the popular vote will demand it. The people will not eject from office judges who are willing to ignore the Constitution in order to do exactly what they demand. If Cruz thinks people will do otherwise, then he doesn’t understand them. The real world is not populated only by patriots dedicated to the Constitution.
Cruz is a smart guy. Why would he place a wolf (in sheep’s clothing) in the fold?
Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly, and applying all the wrong remedies.
Groucho Marx
Slightly off-topic, but seeing an amendment concerning the judiciary is on the table, how about an amendment that would require something more than a simple majority for the government to prevail in any challenge to its authority? The benefit of the doubt should be given to the challenger, not to the government. If any SCOTUS justice thinks there is the slightest chance that government authority to do this or that does not exist, shouldn’t that count for something? “Guilt” in a criminal trial must be proved beyond reasonable doubt in the mind of each juror, wouldn’t something like that be appropriate when considering the authority of government? I’m not necessarily saying I’d require a unanimous decision from the court to assert a statute’s constitutionality, but I think something more than a simple majority is in order. 5-4 is just one vote change away from reversing the decision. That’s a rather narrow margin when it expands the role of government or extinguishes a claim to a right, don’t you think? A 7 vote majority to favor an expansion of government or to rule against the claim of a right would prove a better restraint on government than a simple majority. (That’s a 77.777% of the court compared to the 55.555% now required for a majority.)
This would sometimes swing left (assertion of the right to same-sex marriage), and sometimes right (assertion of the right to arms). In general, it would trend towards greater liberty for all, even if some people have to be dragged, kicking and screaming, towards a nation in which people are actually “free,” and not free according to someone else’s definition of the term.
This is a very rough idea, and needs more thought. But I’m convinced that something like this is necessary.
Judicial retention elections work well for lower level courts. However I don’t see them working on a national level. I like the idea of 12 year terms with a confirmation hearing if they want to continue being a judge.
I think Andrew McCarthy said it best two days ago:
http://www.nationalreview.com/article/420417/supreme-court-john-roberts-marriage-health-care-constitution