One thing the Founding Fathers certainly got right was their rejection of monarchy as our form of government. A few thought George Washington should become king, but this proposal was quickly quashed. There would be no kings or queens running things in the United States of America. At least that was the idea. But today we have the modern equivalent of kings and queens in our political system. We just call them something else: justices of the Supreme Court. Like the royalty of old, they rule for life and are answerable to no one – free to impose their political views on the public for as long as they please.
The Supreme Court is by far the least democratic branch of government. The policymakers in every other branch are regularly accountable to the public in elections. But not the justices. Life-time appointments make them essentially immune from any kind of public accountability. Not surprisingly, all the other major Western democracies (except for Denmark) have chosen to reject this arrangement. They do not appoint members of their high courts for life. They use either term limits or age limits to create regular turnover and ensure that justices do not become too out of touch with the public. Once again, the American political system is an outlier among other democracies and once again we are suffering the consequences.
The Court has enormous power and virtually no accountability – not a good combination for a country that calls itself a democracy.
In the United States, the Supreme Court has become the final arbiter in an ever-expanding number of policy areas, including election financing, gun control, states’ rights, abortion, free speech, civil rights, capital punishment, criminal rights, discrimination, property rights, health care, voting rights, presidential powers, church-state separation, union rights, immigration, gay rights, and so on. But this is also the least democratic branch of government. Enormous power and virtually no accountability – not a good combination for a country that calls itself a democracy.
It almost goes without saying that in any true democracy, the important policy decisions should be made by elected policymakers. This power should be held by officials who are responsive to the public and who can be made accountable to them. We should be able get rid of them if we don’t like what they are doing. But this is not the case with the Supreme Court. There is no effective way to make this institution answerable to the public. Justices are not elected but appointed by the President and approved by the Senate. And once in office, they can do pretty much what they want. Even if a vast majority of the public were to strongly disagree with the Court’s decisions, there is very little that they could do about it. Impeachment is not a realistic mode of public control. It can only be used when a justice is suspected of some kind of criminal activity. No justice has ever been removed in this way.
Concern about the undemocratic and unaccountable nature of the Supreme Court goes far back in American history. For example, Abraham Lincoln was very concerned that the power of the Court was contradictory to the basic principle of having a government “of, by, and for the people.” Like many others of his time, he was outraged by the Court’s decision in the Dred Scott case, where it ruled that slaves were not considered to be people under the Constitution. In his first inaugural address, he observed that:
The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
One danger of having an institution that is unaccountable to the public is that it will make decisions that strongly contradict the public will. In other words, lack of accountability can also undermine another core democratic value: responsiveness. We want our public institutions to be responsive to the view of their citizens. But there are clearly times when the Court is clearly out of step with these public views. One telling example was the Court’s decision in the Citizens United case, where it ruled to allow unlimited corporate spending in political campaigns. A whopping 80% of Americans disagreed with that decision.
In a more recent example, in 2019 the Court refused to do anything about the unfair and undemocratic practice of gerrymandering that allows parties to steal legislative seats from other parties and for political minorities to rule in our legislatures. Polls show that a large majority of Americans of all political stripes oppose gerrymandering and that 70% want the Court to put limits on this shameful practice. But once again the Court’s views contradicted and overruled the dominant public sentiments of the time.
But even when the Court’s decisions are in line with the majority views of the public, those decisions can be corrosive for democracy. Because the groups that lose those decisions often feel politically helpless to do anything about them. They can’t get rid of the justices that made the decision, and at best they are left to hope that some future appointees to the Court will overturn that problematic ruling. Sometimes it is people on the left who are frustrated and angry, and other times people on the right. Some have argued that these repeated feelings of political impotence have contributed to the decline we’ve seen in public support for the Court over the last several decades. In the 1980s, the Court had a 66% approval rating, but this has shrunk by 2016 to 42% — with both liberals and conservatives expressing disapproval.
Is an Unaccountable SCOTUS a Good Thing?
Of course, it could be argued that the Supreme Court should not be accountable or responsive to the public. That is not really a political institution like Congress or the Presidency. Justices are not policymakers, but impartial experts who use their knowledge of the law and the Constitution to render purely legal judgments. Certainly some of the framers of the Constitution thought of the court that way. One of the reasons they liked the idea of life-tenure for justices is that this was seen as a good way to insulate them from the political pressures of the public. If justices are making apolitical legal decisions, they should not have to be responsive to the public in the same way that politicians are. But today, few legal scholars or members of the public hold this apolitical view of the Supreme Court. Surveys show that only one in eight Americans believe that justices decide cases solely on legal principles. 60% of the public believe that the justices “often let their own personal or political views affect their decisions.” And the evidence would suggest that they are right. We need only look at the consistent conservative/liberal divide on the current Supreme Court to see that politics is at play in that body. And just as we have seen increasing polarization between liberal and conservative politicians, so too is there a wider political distance between liberal and conservative justices. As in the case of Congress, that increasing divide is mostly due to conservative justices moving further and further to the right in recent decades – liberals on the Court has only moved a bit to the left. In the end, it is hard to deny that the Supreme Court is a very political institution. If justices are really just policymakers who happen to wear black robes, why should they not be held responsible to the public?
The Unrepresentative Court
The Supreme Court also falls short on another key value of democracy – representativeness. We expect democratic policymaking bodies to be broadly representative of a country’s citizens and their views. In terms of demographic representation, the Court has only relatively recently begun to include women and minorities. Until the mid-twentieth century, the Court was consistently made of white men from well-off families. Given the racial and class make-up of the early Court, it is hardly surprising that it ruled that escaped slaves were not people, that unions were unconstitutional restraints on trade, and that corporations were “persons” deserving the same constitutional protections as ordinary citizens.
Most justices end up representing politicians from several decades in the past, not current elected officials and their constituents.
And then there is the issue of political representativeness. How well does the court represent the partisan and ideological views of the public? It could be argued that the Court is at least indirectly representative politically because justices are appointed by an elected president and a Senate who represent the public. But one doesn’t have to examine this claim very carefully to see that it fails in a number of ways. First, there is the time lag problem. With presidents now appointing new justices in their fifties, it is likely that many of them will stay on the Court for at least three and perhaps even four decades. This means that they eventually represent politicians from several decades in the past, not current elected officials and their constituents. For example, the appointees of Richard Nixon continued to influence Supreme Court decisions for 31 years after he left office. Ronald Reagan helped to shape court rulings well into the 21st century, until the death of Justice Scalia in 2016. We are being ruled by people who represent the political views of prior generations, not our current generation. As a result, as Norman Ornstein has pointed out, “We could end up with Supreme Court dramatically out of step for decades with the larger shape of society.”
Secondly, the Court cannot be accurately representative of the public when the appointments of justices occur randomly depending on when they die or choose to resign. This allows some presidents to make many more appointments than others and to have their political views over-represented in future court decisions. For example, Nixon made four appointments, and Carter made none. Nixon’s multiple appointment changed the Court in a conservative direction for decades. So the Court is not representative of all the presidents who are elected nor the people who elected them. And of course, some justices choose their date of resignation in the hopes that the reigning president will replace them with someone of similar political views. Thus justices not only enjoy unaccountable power for as long as they want, they may also have the power to determine the political leanings of their successors who will rule for decades afterwards. As we will see below, neither of these problems would occur if we had term limits for justices – which would mandate staggered retirement dates that allow every president to make the same number of appointments.
In recent years, the Republican Party has developed tactics to skew the process of judicial appointments in their favor. The most blatant example of this was the Republican dominated Senate’s refusal in 2017 to consider any Supreme Court nominee offered by President Obama. Throwing all precedent and ethics asides, they literally stole a court seat from a Democratic president and gave it to a Republican one, Donald Trump. And that was simply one part of larger pattern. The Republicans also blocked and stalled many of Obama’s appointments to the U.S. Courts of Appeals. These courts actually decide many more cases than the Supreme Court – they hear 59,000 cases a year compared to just 80 or so for the Supreme Court – so many experts feel their power rivals that of the Supreme Court. As John Malcolm of the conservative Heritage Foundation has explained: “these are the judges that have the greatest influence. The buck stops at the Court of Appeals.” By blocking these nominations during Obama’s term, the Republican Senate set up President Trump to fill an unusually high number of these positions. In his first year alone, Trump set a record for number of appointments to these courts and he is on a pace to stack these courts with conservative judges who will rule for many decades to come.
Minority Rule in Appointments
However, another significant problem with the view that the Court indirectly reflects the political views of the public is that this argument assumes that the presidency and the Senate are actually representative of the majority of the American people – something we know is often not true. Our Electoral College allows us to have presidents who have lost the popular vote – who most people voted against. Two of them, George W. Bush and Donald Trump, have appointed four of the current justices that help make up the conservative majority that will rule for the foreseeable future. And as shown elsewhere on this site, the U.S. Senate is the most unrepresentative legislative body among advanced democracies. Because of the two-senator-per-state rule, and the Republican dominance in small states, conservatives have many more senators that they deserve. The Senate Republicans who, in 2017, blocked President Obama’s nominee to the Court, Merrick Garland, represented 20 million fewer people than the 46 Senate Democrats that supported him. When President Trump’s nominee, Neil Gorsuch, was approved by the Senate in 2017, the 45 Democratic Senators who opposed him actually represented 25 million more Americans than the 55 Republican Senators who confirmed him. In this way, minority rule in the presidency and the Senate inevitably leads to minority rule in Supreme Court appointments. Just another example of how unrepresentative and undemocratic the Court is.
Even More Problems
As if all of this is not bad enough, critics of life-time appointments for justices have identified a number of other serious disadvantages to this arrangement.
- Loss of Intellectual Vitality. Unfortunately, as we get old, our ideas tend to get more rigid and we lose some intellectual vitality. It is widely thought, for example, that Hugo Black and Thurgood Marshall were shadows of their former selves many years before they retired in their mid-eighties. Marshall was heard to comment on this last day in office: “I’m getting old and falling apart.” And the late Justice Scalia once told a reporter that you “always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.” Professor David Garrow, who has studied the research on this subject, has observed that the “history of the Court is replete with repeated instances of Justices casting decisive votes or otherwise participating actively in the Court’s work when their colleagues and/or families had serious doubts about their mental capacities.”
- Mailing It In. Justices work less and less these days, perhaps partly in response to their increasing age. They now take on only about half the number of cases they did twenty years ago. The seventy- and eighty-year-olds on the Court can essentially set their own hours. They now take five months of vacation and only sit in session for 80 hours a year. (Not a bad job if you can get it!). And many justices appear to rely more and more on their young law clerks to screen which cases the Court will take and to write drafts of opinions.
Imagine if it were your grandparents who made all the crucial decisions about how you would live your life. You would not be happy.
- Out of Step with Modern Life. As justices grow older and older, many are in danger of falling out of step with modern developments. For example, many justices have become the object of ridicule for their basic lack of understanding about how modern technology works. Chief Justice Roberts once famously asked what the difference was between a pager and e-mail. And Justice Scalia had to be told that HBO is only available on cable, not over the airwaves. These are the people who will be making the crucial decisions that will shape the nature of our communications systems in the future. In addition, having such an elderly court means that many justices may also lag behind the moral, social, cultural changes that are occurring in our society. Imagine if it were your grandparents who made all the crucial decisions about how you would live your life. You would not be happy.
Other Democracies Do It Better
Aside from Denmark, no other major Western democracy appoints its Supreme Court justices for life and so they do not suffer from the many problems that result from this practice. Most of them have more modern, post-World War II constitutions that stipulate term limits for their Supreme Courts, with most in the six- to 14-year range. And among other democracies that do not have term limits, virtually all of them impose a mandatory retirement age. For example, in Canada, Australia, and England, justices in their highest courts must retire at the age of 65, 70, and 75 respectively. These practices mean that these courts have more regular turnover and are more accountable to the public. And they are unlikely to turn into gerontocracies with out of touch justices who rule for many decades. If we simply followed the example of all of these other democracies, we would take a big step toward making our Supreme Court more responsive and more democratic.
Solutions for the United States
One solution to the problems of an unaccountable justices ruling for life would be to elect members of the Court. If justices are indeed policymakers who make the final decision on a whole host of important policy issues, why not make them directly accountable to the public. like all other policymakers? Elections would make justices more responsive to the public, and would allow citizens to get rid of jurists who consistently violate the public will in important decisions. Clearly, elections would be the simplest and most democratic answer to our current problems with the Court. Yet many Americans seem shocked by this idea, seeing it as radical and even un-American. However, electing judges is a common practice on the state level. Thirty-nine states use elections to choose at least some of their state judges, including those in circuit or district courts. And almost half of the states (23) use elections to select their Supreme Court justices. Since most court cases are heard on the state level, elected jurists now preside over a majority of courts cases in this country. Electing judges is actually very American.
Some concerns have been raised about electing justices. Some have argued that it would make the Court too democratic and that justices might tend to consider how their decisions would impact their re-election chances. But would that necessarily be a bad thing? Don’t we want policymakers in a democracy to consider the views of the public as part of their decision-making process?
A more serious concern is the way elections are currently run in the United States – in particular, the large role that private money plays in them. Studies have found that state judicial elections have become increasingly expensive and campaign spending has been dominated by special interests like businesses, labor unions, and trail lawyers’ organizations. Conservative billionaires, like the Koch brothers, and the organizations they fund, have also started spending millions on independent ads to try to elect more right-wing judges.
To be clear, the problem is not with the idea of electing judges and justices, the problem is the way campaigns are financed in the United States – a topic addressed in another piece on this website. Unlike other major democracies, private money dominates election funding here, and allows wealthy individuals and organizations to have an unfair influence on who gets elected. If we had a public financing system for elections, then judicial elections would be fairer and a more acceptable alternative.
The other main solution to our current problems with the Court is to limit the terms of justices. As noted above, virtually all other democracies have rejected life-time appointments and have some kind of term limitation for their highest court. Also, on the state level, only one, Rhode Island, has followed the federal example and appoints its state supreme court justices for life. Justices in all the other states serve for terms ranging from six to fourteen years. And thirty-two states have mandatory retirement ages – most often at 70.
Term limits would ensure that the Court is more responsive and up to date with public sentiments.
A number of different term limitation reforms have been proposed, with times ranging from ten to eighteen years. Eighteen years might sound like a long time, but it is considerably less than the current average of 26 years that justices serve in office. In the eighteen-year plan, which is one of the most popular, appointments would be staggered so that a new justice would be appointed every two years. Each president would thus get two appointments for every four years he or she is in office. This would ensure higher turnover on the Court and help ensure that it is more responsive and up to date with public sentiments. A regular schedule of appointments would also solve the problem of some presidents getting more picks than others. Moreover, with appointments coming up more frequently than they do now, the political stakes of each appointment would be reduced. Everyone would be aware that another appointment is coming up soon.
It would be imperative that term limits also be applied to appointments to the U.S. Courts of Appeals. As seen earlier, these highly influential courts actually decide many more cases than the Supreme Court so it is crucial that these judges also not be given life tenures
Unfortunately, while imposing term limits on justices is a very desirable reform, it would not address all the undemocratic problems of the Supreme Court. In particular, it would do nothing about the fact that justices could still be appointed by presidents who lost the popular vote and confirmed (or blocked) by a Senate that does not represent the majority of American citizens. Those problems would still need to be tackled. For example, we could get rid of the Electoral College and move to a popular vote for president.
Chances for Reform: Not Bad
Over 70% of Americans would like to see term limits for justices – with equal support from both Democrats and Republicans.
Working in favor of reform is the fact that there is a great deal of public dissatisfaction about this institution. Only about 35% of Americans give the Court a positive job performance rating. And over 70% of Americans would like to see term limits for justices – with equal support from both Democrats and Republicans. It is hard to think of another major political reform that has more bi-partisan support. Even Chief Justice John Roberts, before he was appointed to the Court, was open to term limits, observing that a limit of “say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.”
Working against reform is our Constitution, which can easily frustrate these kinds of changes of our political system, even when they are supported by large majorities of the public. Adopting term limits for justices would require a constitutional amendment. And as we know, this is an extremely difficult process – one that allows a minority in Congress or a minority of the states to block any amendment.
Some reformers have suggested an easier path to term limits. Perhaps we could skip the amendment process and simply have the Senate impose a term-limits pledge from nominees during confirmation hearings. But such a pledge would not be enforceable and once on the Court, justices could easily ignore it. So it would seem that a constitutional amendment is really the only viable way to install term limits for justices.
An amendment is certainly not impossible – especially given the potential level of bi-partisan public support. But it would take a highly organized and well-funded movement to push this kind of reform through, and right now that does not exist.
read the next issue: 6. The Problem of Judicial Review