Electing Federal Judges and Justices: Should the Supra-legislators Be Accountable to the Voters?

• Publication year: 2022

39 Creighton L. Rev. 695. ELECTING FEDERAL JUDGES AND JUSTICES: SHOULD THE SUPRA-LEGISLATORS BE ACCOUNTABLE TO THE VOTERS?

Creighton Law Review

Vol. 39

DENNIS B. WILSON(fn*)

I. INTRODUCTION

Judicial decisions have always been a source of controversy, particularly when they conflict with the opinion of substantial portions of the body politic. Decisions in which federal courts declare laws to be unconstitutional are one source of controversy, since they involve an unelected branch of the federal government telling an elected branch (Congress or the President) or an elected institution (e.g., a state legislature or a city council) what it can or cannot do. Moreover, courts often rule in areas in which people have different and often intensely held opinions: abortion, religious expression, racial preferences, and the death penalty, to name but a few. The United States Supreme Court's, and lower federal courts' authority to declare state and federal laws unconstitutional has, however, become an accepted part of American jurisprudence(fn1) and of its political system.(fn2)

The authority to declare laws unconstitutional may be justified on grounds that courts striking down laws as contrary to the Constitution uphold the will of the "enduring majority"(fn3) that adopted and ratified the Constitution against the will of the "transitory majority"(fn4) that passes a law. But judicial review is only legitimate as long as the Court genuinely seeks to establish the meaning of the Constitution as understood by that enduring majority. To the extent that judges and justices examine and consider factors extrinsic to the Constitution to determine its meaning, they take on the characteristics of legislatures (making new laws according to their policy preferences), rather than courts (ascertaining the meaning of the Constitution). A review of the Court's decisions in deciding the constitutionality of morals laws demonstrates that the Court now acts as a nine-person supra-legislature striking down laws that do not agree with the policy preferences of a majority of the justices.

The Constitution provides mechanisms to explicitly overrule or limit a constitutional interpretation by the courts with which political leaders differ, but they are cumbersome, and the political will necessary to use them is difficult to muster. Moreover, there is almost nothing that state legislatures can do when confronted with an adverse court decision, except to appeal to Congress. There are also mechanisms to influence federal judicial behavior in general, but they are indirect and their effect is often difficult to ascertain. One mechanism of directly influencing federal judicial behavior that does not presently exist are elections, since such judges and justices are nominated by the President, with the advice and consent of the Senate, and hold their offices during good behavior, which in practice means until resignation or death. Many states, on the other hand, elect judges and justices or otherwise subject them to electoral scrutiny. Since the federal judiciary has assumed so many of the characteristics of a legislature, especially in its constitutional decisions, and since this role has been accepted by the body politic, it is time for Congress to pass, and to submit to the states for ratification, an amendment to the Constitution to give Congress the power to set terms for federal judges and justices and to devise appropriate mechanisms to subject them to electoral scrutiny.

II. THE SUPREME COURT'S ROLE AS A SUPRA-LEGISLATURE

A. THE LEGITIMACY OF JUDICIAL REVIEW

The American political and legal system allows unelected federal judges and justices to declare unconstitutional laws passed by elected institutions because properly constrained judicial review is consistent with the system of government established by the Constitution.(fn5) One of the fundamental principles of American political theory is that governments derive their just powers from the consent of the governed.(fn6) The people of the United States have consented to be governed under rules expressed in a written Constitution.(fn7) This Constitution reflects the "enduring majority"(fn8) because of its adoption,(fn9) coupled with the super-majority requirements of ratification(fn10) and amendment.(fn11) Moreover, the Constitution and its amendments required adoption by representatives of the "national legislature" (Congress) and ratification by individual state legislatures, ensuring that both levels of the federal system were in agreement. By contrast, only a "transitory majority" is necessary to pass laws, and only a slight shift in that transitory majority is required to repeal or to amend those laws.(fn12) Whenever a transitory majority in a legislative body passes laws that are inconsistent with the rules specified by the enduring majority and passed by both levels of the federal system, the will of the enduring majority ought to prevail, at least until that will has itself changed and those changes have been reflected through the process of constitutional amendment.(fn13) The courts are the instrument by which the enduring majority enforces its will against the transitory majority. When courts declare laws unconstitutional, they are saying that the transitory majority seeks to do something that the enduring majority has said cannot be done.

Ascertaining the will of the enduring majority may not be easy. The Constitution and its amendments remain relatively short,(fn14) yet the situations in which they may have to be applied are numerous. It is unlikely that the language of a law alleged to be unconstitutional will contradict the text of the Constitution explicitly.(fn15) How should a court resolve challenges to laws when consulting the text of the Constitution leads to ambiguous results? Original intent(fn16) is the concept that is most consistent with the theory of government described in the Declaration of Independence. Original intent holds that in interpreting the Constitution, the Court ought to avoid wherever possible looking at considerations extrinsic to the Constitution, but should seek to discover and apply what the Constitutional Convention meant when it adopted the Constitution, or what the Congress meant when it passed a Constitutional amendment, and what the state legislatures understood when they ratified it.(fn17) Courts that strive to decide the constitutionality of laws based on the Constitution's original intent may err, but they will not become a legislature. Courts that look consistently to considerations extrinsic to the Constitution in deciding cases have ceased interpreting the law and have adopted a role of a supralegislature.(fn18)

B. THE DRAWBACKS TO JUDICIAL LEGISLATION

What is wrong with courts functioning as supra-legislatures? Such a body, composed of members learned in the law and insulated from the pressures of imminent elections, might strike down or modify a law that reflected merely the passions of the transient majority.(fn19) As a historical matter, the question of direct judicial review of the desirability of legislation was considered but explicitly rejected by the Constitutional Convention in the form of a Council of Revision.(fn20) Thus the enduring majority considered and rejected the concept that the courts should be able to declare laws invalid because they disagreed with the law's policy. Another difficulty with judicial legislation is that it is exercised through individual judges and justices deciding the cases before them. What seems just and equitable to one judge or set of justices might be unacceptable or even downright wicked to another judge or set of justices. Inconsistent results are likely. In addition, judicial decisions are rendered after the fact, a form of decision making that the Constitution expressly forbids, at least in criminal statutes.(fn21) There is also a contrast between the way that courts and legislatures express themselves. Legislators must vote "up or down" on the language of a statute.(fn22) Statutes must be written in language that is sufficiently clear to avoid being held unconstitutional on grounds that it is "void for vagueness."(fn23) Justices, by contrast, may reach their result in a case through many different processes of reasoning and citing many different sources of authority, all of which can be expressed in concurring opinions, in opinions concurring in the result, or even opinions concurring in part and dissenting in part.(fn24) Even dissenting opinions can become authority for subsequent majority decisions.(fn25) Sometimes justices on the same court do not agree on the meaning of a previous decision or how it ought to be applied in a subsequent case.(fn26) All of these characteristics act to deprive litigants, the public, and even lower courts of substantial certainty about the state of the law when the judiciary legislates.(fn27)

Even if some superb system of common law-like adherence to precedent could be designed and enforced, there are additional disadvantages to using courts to develop rules. Judges and justices bring their personal points of view and prejudices to the bench.(fn28) They rarely have the education and experience necessary to reach consistently desirable public policy results.(fn29) Judges are rarely able to consider a public policy problem as thoroughly as can a legislature, if for no other reason than sheer weight of...