Smaller Government: Judicial Branch
Elect judges? Set term limits? Pack the court?
The last article focused heavily on Congress, the legislative branch of our government. There, we explored three main subplots wherein the strongest contempt lies. Today, the judicial branch will be tackled. There aren’t many subcategories; however, they are imperative to cover. It is these ideas that need to be investigated to see whether they line up with the vision of self-rule and adhere to natural law. Americans need to answer: is change for the sake of change always necessary?
The Judicial Branch
This branch has been an issue of scrutiny in the last decade, especially in the last five years, as many people who voted for Trump in 2016 did so for the opportunity to appoint (at a minimum two, possibly four) judges to the Supreme Court and to fill other federal vacancies in the judicial system. But it wasn’t just any judge—the voters wanted a “conservative” judge (the more accurate word is “originalist”). Conservative judges interpret the Constitution as is, often referring back to the Founding Fathers to understand their original intent. This is in stark contrast to “liberal” or “living document” justices. Liberal justices interpret the Constitution as a living document, adaptable to the changing times. This was the norm for generations until Trump was elected, and by the end of his term, the Supreme Court held a 6-3 majority conservative justice, with a plethora of conservative federal judges appointed as well. That said, there are two main subjects here that often get provoked. The fact that justices are appointed and serve for life has been a debate since I’ve been alive; yet the question of how many justices serve on the highest court—and “packing the court”—has become a newer phenomenon.
Life Appointment, Election, Term Limits & Maximum Age Limits
“Unelected judges,” is a common phrase whenever a political group doesn’t get a desired ruling. However, the idea of having the power to elect a judge gets another universal agreement from all political positions. There are two forms of elections a judge can go through:
We have a hybrid version, where the executive branch is able to appoint a seat. However, after a certain period (the length of the term), voters simply vote “yes” or “no” on the ballot regarding whether the judge should remain on the bench. This “retention election” system is practiced in 17 states.
“Competitive election” is exactly how it sounds. Lawyers who desire a seat on the bench campaign and get directly elected by the people—practiced in 23 states.
The traditional life appointment is practiced in only 11 states. Should the people have a direct voice for those who serves on the bench of the highest court (or any court, for that matter)?
America’s Founding Fathers, as mentioned in the previous article, were influenced by the British system. During the 1680s, the U.K. had judges who were heavily influenced by the Crown. They’d rule to gain the favor of the monarch, which destroyed any sense of independence in the courts. The Framers of the Constitution wanted to avoid another scenario of a politicized court. Thus, they ultimately decided that lifetime appointment would best serve America’s interests. How did they reach that conclusion?
Alexander Hamilton beautifully expressed the purpose of having life-appointed justices in the Federalist Papers:
“According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the state constitutions….Its propriety having been drawn into question by the adversaries of that plan is no light symptom of the rage for objection which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government….It is the best expedient which can be devised in any government to secure a steady, upright and impartial administrations of the law. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppression of the minor party in the community.”
So, were they right?
In short, by having courts that do not concern themselves with elections, there is a freedom from the burden to rule based on public pressure. If an election were to be a requirement—whether it was the hybrid, retention, or competitive election—Americans would run the risk of having judges rule for political points, regardless of whether the law itself was constitutional or not. Is that a risk worth taking? There have been times when the courts have made an error, such as allowing Jim Crow to stand; but with good lawyers and organized groups, eventually the error was corrected. Americans have become accustomed to instant gratification, and thus if there is an undesirable ruling, having an election to remove the justice seems logical. However, their conclusions are subjective. It appears that when it comes to having an election of any sort, America is better off allowing these lawyers to be appointed instead of elected. That said, this gets into another interesting scenario: if the judge gets appointed and doesn’t have to concern themselves with an election, should there at least be term limits, especially at the Supreme Court level? There is another idea floating around about at least imposing a maximum age limit if they are going to be appointed, in lieu of life appointment. This would force retirement, while still not concerning them with elections of any sort. Would this be a reasonable compromise?
The idea of term limits by itself, without the election process, is appealing. Most consider 18 years a reasonable limit, given that the average time spent on the highest bench is 16 years. Additionally, when the Framers had their Constitutional Convention, the average lifespan was 38 years old, making the proposal of a maximum age restriction a compelling argument now. It’s worth noting that Chief Justice Roberts has expressed support for such limitations. However, when it comes to term limits, even without the burden of an election, Americans still run the risk of having a court that is politicized. Imposing term limits would also disintegrate any sense of continuity, because the bench would be cycling through every two years, too. The judicial branch could no longer be considered independent from political affairs with term limits. If Americans thought the confirmation process was politically agonizing without these term limits, imagine it with them!
The complexity with a maximum age limit is that it is purely subjective. The Founding Fathers were concerned about maturity, or lack of maturity. They didn’t envision a day when the average lifespan would supersede 38; however, is that relevant? If a judge can be removed for failing to fulfill their duties, shouldn’t it be the responsibility of Congress to remove a judge because of cognitive decline? If someone’s cognitive condition is a concern due to their advanced age, then a more objective amendment would be to allow Congress to remove the justice. Following the impeachment protocols would be necessary, with a simple majority in the House and having the trial in the Senate, then requiring 2/3 of the senators agree on such a removal. Additionally, because it would be due to cognitive concerns, a different term ought to be used over “impeachment.” This should be allowed as a case-by-case situation, as there is no universal age at which someone’s cognitive state negatively affects their ability to fulfill their duties.
Change for the sake of change isn’t healthy—if it’s not broke, don’t fix it. Does life appointment have its flaws? Absolutely, and it is understandable why these proposed changes are popular with the American public. Chief Roberts’ rationale was that by having some kind of limit to how long someone can serve on the bench, there’d be less of a chance of someone being out of touch with the reality of the people. However, when comparing the consequences of these ideas, lifetime appointment best minimizes corruption. The main change that is really needed here is to allow that a judge be removed due to their inability to perform their duties, concerning their cognitive state. Otherwise, judges only need to remain in the realm of the Constitution itself, not the people.
Packing the Court
Packing the court has become more of a recent debate, as conservatives fear such precedence, while liberals seem poised to regain a liberal majority. The issue is that there is nothing outlined in the Constitution to limit how many justices can serve on the Supreme Court. There isn’t a minimum, either, and thus the responsibilities are put on both the executive and legislative branches to establish continuity. America’s Supreme Court started with six on the bench, and changed six times before settling with nine in 1869. That’s over a century and a half of continuity. But, as with the conversation about the core cause of the sentiment behind elections and term limits, the idea of packing the court is the result of citizens getting undesirable rulings. This is especially true considering that this is the first occurrence of having liberals be the minority on the bench. That said, should Americans rely on this continuity, or should there be a Constitutional amendment for specifics?
There are several matters the Founding Fathers didn’t get specific with in the final draft, such as term limits. And though term limits have been addressed, there is a correlation to be made here. When President George Washington became the nation’s first president, there was no precedent on how many terms he could serve; however, by not seeking a third term, he created continuity for the next 140 years, until Franklin D. Roosevelt. He was the first and only president to break the example George Washington set for others to follow. It was after this presidency that Americans wanted an enshrinement to limit the presidency to two terms. An argument should be made to have a Constitutional amendment to preserve the continuity of nine justices on the bench. This prevents court packing, but also a reduction for the sake of getting a legal advantage. Understanding human nature, this check is necessary.
There aren’t really any drastic changes. The Framers covered this branch in a thoughtful and thorough manner. The appeal to the more radical proposals is emotional, not logical. Those changes would create a kangaroo court, jeopardizing the integrity of the judicial branch. Americans need to dive deeper beneath the surface for clarity on the consequences of these more drastic proposals. There are flaws to having life-appointed justices—it makes it very difficult to remove someone from the bench, especially when it’s not an interpretation of the law we disagree upon. Yet, at the same time, that is the beauty of this system. The best check of balance to fix rulings that don’t align with our interpretation of the Constitution is the Constitution itself, through the amendment process. Elect presidents and members of Congress who will appoint and confirm justices trustworthy to interpret the Constitution independently. And because there won’t be a need to fill in a vacancy every couple or few years, this issue won’t be relevant in every election cycle. This goes back to the expression conserving precedence: “Let sleeping dogs lie.”
Author’s Note: Anything underlined is a link for you to click on if desired. Readers are encouraged to educate themselves and seek other sources for information. Additionally, please share this with friends and family members, along with hitting the “Like” button to reach more people!