For a Politically Partial Supreme Court, Try Judicial Elections
The Missouri Supreme Court, credited with the inception of the Non-Partisan Court Plan, as a guiding framework for judicial elections. Photo courtesy of Jerome L. Goolsby.
A significant criticism against the Supreme Court, reaffirmed following the leaked draft opinion on Dobbs v. Jackson Women’s Health Organization, is its tendency to appear like a political accessory. For many, the conservative-backed majority vote seems more like a decisive victory for the Republican Party than a call to “heed the Constitution.” Although the leaked draft, written by Justice Samuel Alito, rips into Roe v. Wade’s constitutional right to an abortion with a supposedly impartial historical and legal analysis, the decision to repeal emanates from another wing of government.
Fifty years of a secured right to abortion found its demise in the 2016 presidential debate, where Donald Trump bluntly promised to the American public: “I am pro-life, and I will be appointing pro-life justices.” Trump hoped to create a judicial conservative bloc hostile to Roe. With the right nominations, a repeal could “happen automatically in my opinion.”
Political analysts have long criticized the political nature of the Supreme Court; fewer, however, have offered sustainable solutions. Depoliticization initiatives and term limits address parts of the larger problem, while court-packing kicks the can down the road. Americans need a fundamental change. Rather than perpetuating the misguided image of an apolitical judiciary, it's time to hold Justices accountable to the American public.
It’s time we thought about electing our Justices.
Both parties understand that a “liberal” or “conservative” supermajority would enjoy an unilateral check to future congressional and executive majorities. Currently, the Republican-conservative label has accomplished major advances to their policy preferences; the electorate, however, perceives a democratic deficit.
The decision following West Virginia v. EPA, which restricts the executive branch’s ability to regulate carbon emissions, hinders the American fight against climate change. Contrastingly, a Yale study illustrates 72% of Americans are climate conscious and on board with CO2 regulation.
The Court’s conservative supermajority also struck down a series of gun control laws passed in New York State, despite the 79% of state voters who agreed with the new measures.
Roe v. Wade’s repeal contrasts 61% of Americans identifying as “pro-choice.” States like Florida and Oklahoma represent the precautionary tale where a majority believes in abortion as a right, yet stringent measures are still passed.
What’s next for our activist Supreme Court? Targeting established constitutional rights and provisions may not stop at abortion, despite promises outlined in Alito’s judicial opinion piece. In an interview with GBH news radio, Nicole Haberfield, law professor at Boston University, related Roe’s overturn with other constitutionally discerned rights. “Roe v. Wade is part of a web of rights related to intimate relationships … if you pull out the Roe thread, the rest of the patchwork starts to unravel.” Despite the explicit promises to uphold reaffirmed precedent, the judges substituted their respective party’s stance. Justice Clarence Thomas, regarded as the conservative bastion of today’s bench, identified decisions enshrining contraceptive use and LGBTQ+ rights as future targets of judicial review. To this point, Haberfield highlights the draft opinion’s “history and traditions” evaluation of Roe, warning that the Court may leverage a rich history of American discrimination to weaken decisions regarding fundamental minority rights.
The Supreme Court’s political nature isn’t news to politicians, and shouldn’t be to the public. Elitist Federalists of the 1800s shrunk the Supreme Court to prevent an opposing Thomas Jefferson from appointing a Justice friendly to his agenda. FDR’s court expansion, which later enabled the historically liberal New Deal agenda, effectively diluted the judiciary’s “conservative” opposition. Similarly, progressive members of Congress have encouraged President Biden to reintroduce Court expansion in lieu of the conservative supermajority. As such, Justice Ketanji Brown Jackson’s confirmation hearings were riddled with irrelevant personal questions, as members of Congress sought to invigorate affective partisanship stances within respective bases. Retrospectively, the Supreme Court is an effective and unofficial extension to the political stage.
The Supreme Court has long been regarded as the government’s referee, yet the bench has demonstrated anything but impartiality. Nonetheless, Americans remain faithful to the legal dogma of ideological impartiality, growing far too accustomed to enabling an overtly political judiciary to tailor our laws with their self interests.
By subjugating the Court's composition to an electoral system, performance could be based on the public consciousness of the law and its agreed application to everyday life. Better said by NPR radio host Neal Conan, who hosted an insightful conversation of elected judiciaries: “If they're going to act like legislators, they should be elected as legislators.”
The idea of electing Supreme Court Justices isn’t new or radical. One half of the States hold elections to retain nominated Justices in State Supreme Courts. Judicial election initiatives like the “Nonpartisan Court Plan” or “Missouri Plan,” with specific iterations in large population states like California and New York, can benefit a Supreme Court prone to partisan bias.
California’s system could be valuable to the federal level because it combines elements of our traditional appointment system with a retention election (comprehensively described here or through the infographic). A nomination justice is brought on when a previous Justice finishes their 12-year term. An appointment justice is brought on when the last Justice retires or dies, responding to sudden bench vacancies.
Both frameworks serve as safeguards against unqualified candidates. The combined interests of the government and electorate would ensure that a popular candidate with minor or irrelevant legal experience is as unlikely to win as a well-qualified, unpopular candidate. Candidate quality would undergo constant scrutiny before such a long-term investment is made into the Supreme Court’s bench.
One of the system’s virtues is the polity’s extensive role in the candidate selection process. A State Bar’s Commission on Judicial Nominees Evaluation (JNE) is assembled within the selection process to assess candidate quality. Rather than a centralized and partisan membership, the commission’s body must include active state bar licensees, while being representative of the state’s diverse demographics and ideologies. The commission roster is made public, and the process is outfitted with policies that strive toward transparency. Although the evaluations are conducted and recorded privately, a complete analysis is published when the governor appoints a candidate deemed unqualified for the JNE.
Election scheduling is also crucial. For California, the nomination and appointment mechanisms are different. The nomination process subjugates candidates to a retention election at the end of the previous Justice’s term. A retention election is conducted during the next gubernatorial election for immediate appointments. The latter can be helpful to our federal court, especially when the American political consciousness erupts with participation during presidential elections.
Retention elections encourage Justices to keep their jobs by forcing them to contend with the public’s legal discourse. Professor Melinda Gann at Michigan State University expounds on judicial election benefits, showing substantial evidence that states with “nonpartisan elections” make the judiciary more accountable for their private attitudes employed in legal analysis; their decisions are strategic, meaning Justices are forced to be cognizant of the polity’s preferences in judicial review. With Justice Samuel Alito’s opinion paper on Roe, it means that the legal theory upholding a right to abortion without excessive government intervention is not discredited with a singular take on America’s “history and traditions.” Judicial opinions belong to the people, not just partisan justices. The bench deserves to be subject to electoral sanctions when legal theorizing deviates from the public’s consciousness of a law’s place in their society; accepted and repeatedly reinforced precedent would be institutionally respected — rather than subject to arbitrary promises in Senate confirmation hearings.
What could go wrong?
Charles G. Geyh, writing for the Indiana University Maurer School of Law, criticizes judicial elections mechanisms with his “Axiom of 80.” In his view, 80% of the public favors judicial elections but don’t vote or understand the candidates; by extension, pervasive political inefficacy may lead to their disillusionment in judicial elections and allow opportunities for financial campaign contributions to “buy” Justices. Such problems are ubiquitous at all levels of government—but not impossible to mitigate.
The problem of voter attention (80% don’t recognize candidates) and turnout is less likely to prevail at the federal level. Justices are iconographic, singular political actors that are easier to follow than state-level officials. Although Justice Ketanji Brown Jackson’s historic nomination naturally attracted attention, the spectacle of a national confirmation hearing allowed for a lively political discourse on the Supreme Court. Subsequently, politically active members of the polity identified the stakes, benefits, and detriments of her candidacy; Senators in Justice Jackson’s confirmation hearings certainly took the opportunity to argue her politics and made their decisions accordingly, so why can’t the polity do the same? When a high profile election hangs over the electorate, political discourse manifests in the conversational outlets of life. From major news media publications to the quotidian, awareness naturally encourages higher voter turnout. A state judicial candidate couldn’t say the same about political relevancy.
Future campaigning and subsequent financing present an existential threat to retention elections, but who can say the Court is currently exempt from money in politics? ProPublica provides insight into “the largest known political advocacy donation in U.S. history,” which empowered conservative-leaning interest groups to guide President Trump’s judicial nominations. Decisions made by the conservative majorities in Citizens United v. FEC and FEC v. Ted Cruz for Senate have effectively deregulated money in politics, allowing for unfettered donation spending and loan extractions (respectively) in the name of 1st Amendment rights. State judicial elections also bear this weight, as the Brennan Center for Justice recorded expenditures for state-level judicial elections that soared into the double-digit millions.
Judicial election politics on the federal level may not reduce exorbitant campaign spending. Still, it may as well make spending more transparent and allow for future judicial overturns in the right direction. By concentrating the voting apparatus from the Senate to the electorate, donation spending can be better scrutinized on the national stage than behind it; payments to congressional offices can redirect to campaign mobilization efforts. More importantly, future Justices forced to engage with public political discourse can factor in the 77% of Americans against unfettered campaign spending. A future lawsuit contemplating the Citizens United v. FEC decision can acknowledge that America's impression of representative politics should be one without money’s influence.
A populist-like approach to the Court does present a philosophical dilemma on trust. Can the average American voter be trusted to identify when a Justice is partial or cognizant of the public discourse? Despite today’s polarizing politics, the American political consciousness is still relatively moderate and more “visibly sound” than we think. A significant finding in our post-Roe America is that a conservative Supreme Court does not allow for political nuance. Following a referendum on the right to abortion, voters in Kansas and Kentucky decided to uphold it in the State’s constitution. At first glance, the situation seems anomalous—the states are distinctly Republican, warranting expectations that voters would behave according to the current Republican-conservative label. However, public consciousness of abortion encouraged a bi-partisan conversation on excessive abortion bans: instead of polarization, a meditation ensued for those who understand an inherent need for abortion legality. Despite expensive referendum campaigns, the outcome proved more complex than our politics’ singular ideological front of conservatism. Election pundits were notably surprised in 2022’s midterm election outcomes, as scientific polling analysis failed to acknowledge the primacy that issues on abortion and democratic efficacy would have against economic indicators.
Elections may be the most endeared, legitimizing mechanism for American democracy, yet a lack of centrality and incoherence inevitably weakens our faith. For judicial elections, much more can be said about its advantages and imperfections. This article illuminates an aspiration and set of ideas for democratizing an institution that is otherwise wholly insulated. Justices need more accountability and must interact with the broad, ongoing conversations on the law’s place within our lives.
Innovations like the Nonpartisan Court Plan do not distort the original purpose of our Court, established by the Framers. Instead, it is a clarification of the Court’s role that it has continuously undertaken. Our Justices only self-proclaim their disposition to a chamber guided by a tradition of democratic righteousness and impartiality. That’s not enough.
Contributing writer David Contreras-Araya is a Sophomore studying Sociology and History in Columbia College, currently romanticizing law school.
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