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by Perry Abdulkadir | Fall 2018

The Supreme Court has had a complicated history with democratic theorists—a robust judiciary with the power to apply strong judicial review has been both demonized as an affront to democracy and lionized as foundational to it. The topic was thrust back into the center of the forum for public debate once again with the appointment of Justice Brett Kavanaugh. A Republican-controlled Senate was able to win out by a razor-thin margin and confirm his lifetime tenure. A similar scenario unfurled a year earlier with the confirmation of Justice Neil Gorsuch; his appointment was especially politicized because he was filling a seat that had laid vacant for months under a previously Democratic Senate and White House. 

In the wake of these nominations, various proposals seeking to reform the Court have been advanced. They mostly fall into the following categories: (1) impose a term limit so that each nomination is lower stakes; and (2) force the Court to practice weak review so that precedents made by an undemocratically-appointed body are not stringently applied across time. I argue that there is a far simpler option, one already used at the state level across the nation—Supreme Court Justices should be directly elected by the public.

The election of judicial officers is not so radical a proposal as it initially seems. First, we need not part with the Anglo-American tradition of single-member, geographically-based districts. The 326 million people in the United States could be divided into nine Supreme Court districts of approximately 36 million people each. The practice of dividing the United States into arbitrary supra-state organizations is already used: the Federal Reserve system operates across twelve different arbitrary regions; the U.S. Court of Appeals operates across eleven geographically grouped circuits. Furthermore, the Supreme Court has already changed significantly in structure during its lifetime. Because the Constitution leaves the details of establishing a Court to Congress, the number of justices in the body has varied throughout the institution’s history. Finally, there already exists in American history a precedent for transforming indirectly democratic institutions into directly democratic ones. Ratified in 1913, the 17th Amendment decreed that senators are to be directly elected by the population of their states rather than by state legislatures, as was the norm.

A proposal that calls for the election of Supreme Court Justices would require a constitutional amendment. Despite the Constitution being infamously terse on the structure and operation of the Supreme Court, it does, in fact, state that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court.”Despite the difficulties of amending the Constitution, the ensuing system of democratically electing Justices would render many other misgivings about the Court moot. Most importantly, it  would quash any concerns about how representative the Court is of the American public’s will. Additionally, it would remove the perverse partisan incentives that Senators and Presidents have during the nomination process. 

Critically, democratic reforms of the Supreme Court would eliminate the political hot potato that is the nomination and confirmation of Supreme Court justices. The high stakes nature of confirmations, at best, results in the Senate wasting valuable time on the legislative docket that could be used elsewhere. At worst, the appointment process has resulted in constitutional crises. 

The appointment of Supreme Court justices takes up time that should be spent legislating. In many cases, nominations drag on for months. Famously, Robert Bork was nominated by Ronald Reagan in early July and was not rejected by the Senate until early October of 1987. Justice Kavanaugh’s appointment process seemed to take up the entirety of the summer in 2018 and left little ability for politicians or the news cycle to focus on anything else. The most notable crisis came in the form of President Franklin Delano Roosevelt’s 1937 attempt to expand the Supreme Court. Facing an obstinate and conservative Court that was rejecting his New Deal legislation, President Roosevelt proposed the Judicial Procedures Reform Bill of 1937. Because the Constitution establishes that Congress is responsible for deciding the composition and form of the Supreme Court, President Roosevelt proposed that an additional justice should be appointed for every member of the Court above the age of 70 (up to a maximum of six). This was interpreted as a power grab—Roosevelt’s “court-packing plan.”

We have seen other prickly constitutional questions raised by the nomination process more recently. On March 6th, 2016, President Obama appointed Judge Merrick Garland to fill the seat left by Justice Antonin Scalia. Republican Senate Majority Leader Mitch McConnell shockingly decided to let Judge Garland’s nomination die in committee with no floor discussion or votes. To do so, the Senate passed the so-called “nuclear option,” necessitating a simple majority for the confirmation of Supreme Court justices instead of the usual 60 votes. The claim at the time was that, with the election coming up, the voice of the American people should be heard. This move was roundly criticized as “stealing” a Supreme Court seat, as the nomination had occurred more than half a year before the 2016 election. The same novel parliamentary procedure allowed the Republican Senate to confirm Justice Brett Kavanaugh in 2018 by a razor-thin 50-48 margin straight down partisan lines. 

The nebulous description of the Supreme Court in the Constitution, when combined with the incredibly high stakes of nominating a justice, result in a politically volatile landscape that encourages brinkmanship. Having the citizenry vote on Supreme Court justices would obviate the need for constitutionally questionable parliamentary maneuvering. Direct election of justices fixes an institution that is fundamentally anti-democratic at its core. In the 2018 election, voters nationwide chose Democratic senators over Republican senators by a 7% margin, yet Republicans retained control of the Senate—and even gained seats, thanks to the malapportioned nature of the Senate. Because each state gets two senators, small, primarily rural (and conservative) states have a disproportionately large influence. This in and of itself is not a bad thing—the Senate was created specifically to defend the rights of small states and the political minority. Senate malapportionment, however, leads to malapportionment in the electoral college, which led to the bizarre scenario whereby a Senate (elected by a minority of the country) appointed Justice Kavanaugh (who was supported by a minority of the population—40% according to a Gallup poll from the time of his confirmation—who was confirmed by a president who lost the popular vote by millions. On a structural level, allowing the Supreme Court to be selected by the Senate and President allows not just for minority protection, but minority rule.

There are those who would argue that Supreme Court nominations should not be subject to public opinion because (1) it politicizes the Court and (2) the public is ignorant of the expertise necessary to be a successful justice. I will address (1) first, as it can be refuted quite simply: that ship has sailed. A CNN exit poll conducted during the 2016 election found that for 21% of voters, Supreme Court appointments were the single most important factor in choosing for whom to vote. Another 48% listed the appointments as “an important factor” in their decision. To argue that the Supreme Court is an apolitical institution is just not a tenable position in 2019. (2), similarly, holds no water when scrutinized. The average American does not understand the United States naval policy in the South China Sea, yet we trust the American public to elect our Commander-in-Chief, the individual directly responsible for the United States naval actions in that theater. People need not know the minutiae of the law in order to select a Justice. How might they make an intelligent decision? The same way that they vote currently: due diligence, helped along by various organizations, think tanks, media outlets, Hollywood stars, and other politicians that provide their analysis of a candidate. Individuals need not a law degree to know that they believe in rehabilitative justice or that they are pro-life. Information about candidates for the Supreme Court would trickle down to voters through the same channels that people currently use to evaluate politicians. 

Many states actually already elect justices to their local supreme court. Fifteen states allow non-partisan elections for judges and seven allow partisan ones. I cannot speak to the efficacy of said systems—I have not conducted any comparative studies between states with and without elected judiciaries. However, I can say, at the very least,  that an elected judiciary is a viable option worth exploring. Many places have been doing it for a long time with success. Furthermore, requirements can be imposed to ensure that Supreme Court Justices are properly qualified, similar to the age, citizenship, and residency requirements for members of Congress and President. This would help to prevent joke or protest candidacies.

Allowing for the direct election of Justices would allow the Supreme Court to become a truly co-equal branch of government. Supreme Court Justice is the only constitutionally-mandated position that depends upon the existence of the other two branches of government. Debates over whether judicial “overreach” or “activism” is undemocratic would vanish. The elephant in the room is, of course, the viability of passing such a constitutional amendment. Constitutional amendments require a two-thirds vote in both chambers of Congress (but, importantly, not the assent of the president) in order to be proposed. Then, three-quarters of the state legislatures must approve the amendment. The chances of the Senate voluntarily choosing to relinquish one of its most powerful responsibilities, that of “advice and consent,” is near zero. The only other route to proposing a constitutional amendment is for two-thirds of the state legislatures to propose a constitutional convention, which has never happened in American history. 

There is very little chance for processes involving the appointment of Supreme Court Justices to change via constitutional amendment, barring any radical change in American politics. Still, it is an option that merits serious exploration, especially given the success that direct elections of judiciaries in individual states have experienced. As discussed above, it may solve a lot of the problems inherent in the system that we have today.

REFERENCES

[1]  Gallup, Inc. "Americans Still Closely Divided on Kavanaugh Confirmation." Gallup.com. October 03, 2018. Accessed January 22, 2019. https://news.gallup.com/poll/243377/americans-closely-divided-kavanaugh-confirmation.aspx.

[2] Plebiscites can be held for nominees, but they would count as nothing more than the non-binding advice of the People.