Recent Supreme Court Term: The Supreme Court Openly Challenges Its Own Legacy

One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His proposal: a Constitutional amendment that would replace life tenure for the Supreme Court with periodic retention elections. Under the Cruz plan, each Justice would face the voters in the second national election after initial confirmation, and every eight years thereafter. Justices would need a simple majority of “retain” votes to stay on the bench. Justices who are not retained would be replaced and would not be eligible for reappointment.

The Senator couched his proposal as a response to “a long line of judicial assaults on our Constitution and the common-sense values that have made America great.” Offering some red meat for his conservative base, he added that retention elections would provide a remedy for “the decisions that have deformed our constitutional order and have debased our culture” by “giving the people the regular, periodic power to pass judgment on the judgments of their judges.”

As a tool of partisan accountability, the proposal shouldn’t work. Retention elections have been used at the state level for 75 years, and only in very rare instances—California in 1986, Iowa in 2010—have multiple justices on a single court lost retention elections in the wake of a politically controversial ruling. Citizen anger over controversial decisions generally does not translate into judges being kicked off the bench. Put another way, retention voters are assessing something more than mere case outcomes when determining whether to keep a judge in office.

This may seem surprising, given that politicians routinely try to rally their bases in reaction to Supreme Court decisions they disfavor. (Consider the left’s reaction to Citizens United or Heller, or the right’s reaction to Sebelius or Obergefell.) But ordinary voters don’t think like politicians. As I have documented here and here, to everyday citizens, a judge’s perceived commitment to a fair legal process is far more important than specific case outcomes. Voters will forgive a judge with whose rulings they disagree as long as those rulings appear to have been reached fairly and with respect for the court’s (often circumscribed) institutional role. Voters are less forgiving, however, when a judge appears to have intruded into the domain of the legislature, acted obnoxiously, or reached a decision that lacks a solid legal grounding.

Senator Cruz is a smart man, and he must know that voters assess judges differently than they do legislators or executives. So I doubt he is using retention merely as a conduit for channeling partisan anger. Quite the opposite: he appears to be counting on voters to assess the Justices on their commitment to procedural fairness and institutional humility, and to find that commitment lacking.

Unfortunately, in this regard the Supreme Court has not helped its own cause. The series of befuddling opinions in Obergefell v. Hodges nicely illustrates the problem. Justice Kennedy’s majority opinion on same-sex marriage was laden with soaring, poetic rhetoric about the profundity of marriage and the entitlement of all people to “equal dignity in the eyes of the law.” One is apt to agree with these sentiments as a matter of policy or even morality. But a constitutional exegesis demands something more. The Obergefell majority never cleanly and clearly explained why it was the province of the Supreme Court to accomplish what Congress and state legislatures might have (eventually) done themselves. Indeed, Obergefell was arguably far less grounded in the constitutional text than either of the equivalent efforts on same-sex marriage offered by the Iowa Supreme Court and Massachusetts Supreme Judicial Court years earlier. In doing so, the majority opened the door to criticisms that the Court had overstepped its institutional bounds.

The dissenting opinions subsequently pulled that door right off its hinges. The Chief Justice lamented, “The majority’s decision is an act of will, not legal judgment…. Just who do we think we are?” He went on: “Five lawyers have closed the debate and enacted their own view of marriage as a matter of constitutional law.” Justice Scalia went further, charging that the majority opinion “lack[ed] even a thin veneer of law” and ruling a “system of government that makes the People subordinate to a committee of nine unelected lawyers.” Justice Alito picked up the same theme, warning that the Constitution forbids “five unelected Justices from imposing their personal vision of liberty upon the American people.” Only Justice Thomas constrained his dissenting opinion to a legalist discussion about constitutional meaning.

As a debate over national policy or constitutional philosophy, the five Obergefell opinions make fascinating and important reading. As a vehicle for increasing, or even sustaining, the institutional legitimacy of the court, however, they are collectively a train wreck. Anyone who reads the majority opinion and suspects the court of moderately overstepping its institutional role will, upon reading the dissents, find a far more grievous critique. The Court, we are told, undermined the core of American democracy through unelected lawyers and (in Justice Scalia’s inimitable words) “judicial Putsch.” Even if one agrees with the outcome of the case (and I count myself among them), the internecine squabbling over institutional overreach is deeply unsettling. The majority could have worked harder to formulate an opinion that sounded less like public policy, and the dissenters could have made their points with far more responsible rhetorical flourish. No wonder Senator Cruz felt that the public might be ready for retention elections.

Thanks to the court’s self-flagellation, the Cruz proposal cannot be treated as mere pandering to his right-leaning base. Public respect for the judiciary is near a 15-year low, and allegations by the Justices that their own colleagues do not respect the rule of law cannot help. Those who want to see the Court regain its lost institutional legitimacy can only hope that the Justices recognize the damage that comes from their public dysfunction, and collectively work to repair it.

Jordan M. Singer

More ruminations on judicial elections

Last week's general election proved to be a tough day for state courts and state court judges. Despite support from the state legislature and national luminaries such as Sandra Day O'Connor, Nevada voters rejected a ballot initiative to move away from contested judicial elections and toward a merit selection system. (I previously blogged about the dangers of judicial elections and the benefits of the Nevada initiative here.) The proposed merit system would have instituted careful screening of judicial applicants and evaluation of existing judges, both of which were in the public interest. Sadly, the public itself was not interested.

Other states saw issue politics directly impact judicial retention elections. In Iowa, as my colleague Lawrence Friedman noted last week, three supreme court justices failed in their retention bids after voters made the election a referendum on that court's ruling on same-sex marriage. Opponents of the three justices spent approximately $800,000 to secure their removal, nearly all of it coming from sources outside the state. In Florida, two supreme court justices were targeted by tea party groups after they ruled that a proposed initiative exempting Florida from the new national health care legislation did not meet state ballot requirements. While these justices were retained, they received lower retention rates than their counterparts who were not directly targeted.

Not all news was bad, however. In Colorado and Kansas, voters looked past similar issue-oriented campaigns designed to oust members of their respective highest courts, and chose to retain a host of thoughtful and experienced jurists. And in many other states, retention elections proceeded without much commotion.

What to make of these results? We should be cautious about drawing too many comparisons between states, since the dynamics of each state's electorate can be very different. But it is hard not to notice that states with strong, public judicial performance evaluation (JPE) programs tend to be more immune from politicized retention elections than states without such programs. JPE offers voters comprehensive, neutral evaluations about each judge's performance with respect to the process of judging. In other words, JPE encourages voters to retain (or not retain) a judge based on the judge's demonstrated ability to communicate clearly, treat parties fairly, manage his or her docket, and behave appropriately in the courtroom. The substance of individual decisions never comes into play during the evaluations. JPE therefore asks voters to consider the entire context of the judge's role, not just a particular substantive decision.

In Kansas, comprehensive JPE may have blunted the campaign to remove Justice Carol Beier on grounds related to abortion, and in Colorado the same type of extensive JPE program may have caused voters to disregard the "activist judge" rhetoric of that state's unsuccessful "Clear the Bench" campaign. By contrast, the three Iowa justices had no formal, process-based evaluation to help contextualize their overall work on the bench. They now join a growing club of former state supreme court justices who have lost retention elections over the past 25 years -- Rose Bird, Cruz Reynoso and Joseph Grodin in California, Penny White in Tennessee, and David Lanphier in Nebraska -- none of whom had JPE available to them at the time of their failed retention bids.

JPE is not a cure-all. To work, the evaluations must be fair, thoughtful and accessible, and voters must actually read them and incorporate them into their decision-making. But the potential upside of JPE warrants at least a closer look in other states. Perhaps in the next election cycle, we can celebrate informed voting rather than bemoaning the impact of special interest campaigns.