Judicial Extremism: Dictatorship of the Judiciary
Reconciling "rule of the people" with "rule of law"
Long considered the least representative and least constitutionally defined branch of government, the U.S. Supreme Court’s nine unelected judges have amassed tremendous power to override Presidential elections [Bush v. Gore], overturn precedent on prior established Constitutional rights such as abortions [Dobbs v. Jackson], and dismantle decades of affirmative action [Students for Fair Admissions, Inc. v. Harvard].
Once described as the “least dangerous branch” by Alexander Hamilton, due to its lack of fiscal and military powers, the rise of the modern bureaucratic state and lawfare has transformed the judiciary into a very effective tool to implement national policy. Nowadays, the Supreme Court has been appropriated into a blunt instrument to deliver extremist policies and overturn established precedents. The immense power wielded by these justices has shifted the nation from a "rule of the people" to a "rule by an arbitrary panel," where nine individuals dictate laws for millions. Since justices serve lifetime terms and new ones appointed only upon the death or retirement of sitting justices, the death of a Supreme Court justice now has become just as destabilizing to the American political structure as the death of a king.
The fundamental dilemmas at hand in designing a fair judiciary is how to balance the mutually exclusive principles of accountability vs. independence, and adaptability vs. consistency. This challenge is not unique to the U.S.; countries like Mexico, Israel, and India are also grappling with addressing the overwhelming, undefined and unaccountable powers wielded by their judiciaries.
Rather than patching incremental solutions, we should think of a ground-up redesign of the judiciary with solutions such as term limits for judges, direct elections of justices, and supermajority thresholds to overturn precedents or legislation.
Term Limits
U.S. federal judges are nominated and confirmed for lifetime positions with the intention of ensuring impartial and independent judgments. However, the unintended consequence of lifetime appointments and a constant number of justices is that the distribution of ideologies on the court is completely arbitrary and determined by which party controls the Senate at the time of a justice’s death.
This can be seen in the current skewed distribution of Supreme Court justices, with 3 having been appointed by Trump in 4 years versus Obama only appointing 2 justices over 8 years.
Rather a solution to this would be for justices to serve terms similar to every other federal office. Supreme Court justices could instead serve 18 year terms, with a new justice added every 2 years. Thus, over 18 years you would see a complete turnover in the Supreme Court. An 18 year term should be sufficiently long to ensure justices aren’t influenced in their judgements by post-employment prospects.
This change has been proposed repeatedly over the last decades as a simple rationalization of the judicial system [https://www.brennancenter.org/our-work/policy-solutions/supreme-court-term-limits] but due to inertia has not been implemented. Most likely this change will have to be a constitutional amendment, although Democrat Representative Rohit Khanna has proposed a version of this implementation that would place Supreme Court justices on to “senior status” after 18 years [https://news.bloomberglaw.com/us-law-week/supreme-court-term-limits-heres-the-best-option], where justices: would hear cases by designation on the lower courts, step in to hear cases on the Supreme Court in the event of a recusal or unexpected vacancy, and assist with the management and administration of the federal courts.
This change could still be ruled unconstitutional by the Supreme Court, so an amendment might be necessary. If an amendment is the only route, this change could also be paired with a national term limit on any elected/appointed official holding the same office for more than 18 years. This would be a parallel change that should be popular as over 80% of Americans want term limits for members of Congress [https://constitutioncenter.org/blog/why-term-limits-for-congress-face-a-challenging-constitutional-path].
Judicial Elections
Democracies across the world have tried the whole gambit of solutions to structure an impartial and legitimate judiciary, and are now coming to terms with how to reconcile an independent judiciary with the will of the people.
Countries such as India and Israel have independent commissions to choose their justices, but the further removed from the people such selection mechanisms are, the more room for corruption and backroom deals. Additionally, choosing judges with such commissions brings further issues such as lack of direct accountability and transparency to the people, the distribution of ideologies of the court not being representative of the people, and the judicial system being in its own bubble. Usually such commissions include sitting justices, and the Israeli commission is criticized as "one friend brings another" and in India it is common that appointed judges are related to sitting judges. A common mis-framing of the problem at hand is to think the Supreme Court must be apolitical and a committee should be formed to find the most competent lawyers in the land to run the Supreme Court. Rather, the decisions of the Supreme Court are political by definition and nearly all the candidates for the job are very capable with their ideological opinions being the main difference. Committees to select candidates instead just obfuscate and launder the dealmaking of filling such a powerful post imply that ideological moderation or centrism is the same as nonideological. Indeed both countries are convulsing through judicial reforms that pops this judicial bubble and makes the judiciary accountable to the people. Ironically, both the Indian and Israeli Supreme Courts found changes in how new justices are chosen as unconstitutional, and conveniently for the judiciary turning these countries from real democracies to “juristocracies” [rule by courts]. In the Indian and European context, various layers of continually accrued rules and rights have created an absurdist mess where “‘human rights’ is a cult, and the judge is its prime minister”.
Rather the optimal way to select judges should be a direct election. The election process itself is a great mechanism for bringing into the open the candidates’ opinions, prior history and dragging out all the skeletons in the closet. Take into consideration for the appointment hearings of all the justices appointed by Trump: Kavanaugh, Gorsuch, and Barrett. All had stated in Senate confirmation hearings that Roe v Wade was settled law, only to surprisingly vote to overturn the precedent after being appointed. Clearly, there were backroom discussions, out of the public view, to ensure all the appointees would vote down the line to overturn Roe v Wade. Having direct elections of Supreme Court justices would ensure all such opinions would be brought forth to the public as part of the candidate’s campaign.
In fact 39 states out of the 50 U.S. states have direct elections of state judges with minimal impact to the independence of the judiciary or other adverse affects. Similarly, South of the Border in Mexico, the ruling Morena party is looking to pass a constitutional amendment to allow for direct elections for the federal judiciary to rein in “rotten and corrupt” judges out of touch with the people.
The judicial elections themselves can be structured with a fractional electoral college and FedSTAR voting as mentioned in prior article. The fractional electoral college would preserve the federal structure and states rights.
This change could be paired with the term limits change such that a new Supreme Court justice would be elected every 2 years on the same ballot as congressional elections. This could also be extended to lower federal courts such that constituents in a circuit court can elect their judge as well.
Supermajority Thresholds
Balancing the need for a judicial system that is adaptable to the evolving needs and opinions of a nation as well as having consistency with historical precedents is a a tough balancing act.
Not only is it unstable but it bring into question the legitimacy of the judicial structure when consequential rulings such as Citizens United [granting unlimited election spending by corporations] are ruled upon with a bare 5-4 majority. Applying a hypothetical pressure test of this structure, one can imagine a Supreme Court that waffles back and forth on precedents with 5-4 decisions leading to chaos and uncertainty.
Although the Supreme Court had a history of following the unenshrined principle of judicial deference to the other elected branches for the sake of democracy, the current activist court majority has disregarded this deference and is wreaking havoc to the democratic structure of the country.
The principle of judicial review of the other branches of government is actually nowhere to be found in the Constitution, but instead was constructed by the Supreme Court itself in Marbury v. Madison. Whereas the interplay between the other branches is clearly defined in the constitution such as two thirds requirement to overturn a veto or impeach the President, the judicial review mechanism is left undefined. In fact, numerous proposals have been made over the years to require a super majority threshold for the Supreme Court to overturn congressional legislation and 2 U.S. states [North Dakota and Nebraska] have such requirements at the state level. Some went even further, President Theodore Roosevelt ran for reelection on a promise “of an amendment to allow a popular recall of judges and judicial decisions so that the people at large had the final say in constitutional interpretation”.
A super majority threshold [in the case of nine justices this would be a requirement of 6-3] can be required for consequential rulings such as overturning prior precedent, striking down legislation as unconstitutional, and restricting executive privilege. This threshold should ensure consistency and democratic legitimacy, while still catching true abuses of power and overreach.