Retention Votes for the Supreme Court

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In January, there were countless recaps of the year we had in 2018. Among them, one of the most painful to relive was the controversy over the Kavanaugh confirmation.

With many news followers drawn into that situation, as polarizing and galvanizing as it was, it’s become a glaring example of why many have thought Americans need to diffuse the political tension that has come to surround the confirmation process for Supreme Court justices.

Regardless of your side of the debate, you likely still take issue with the ultimate results of the controversy. In time, the now-Democratic majority may feel the need to address the initial murmurs of trying to impeach Kavanaugh after he was confirmed.

Whether you viewed the Democrats as obstructionists or the Republicans as blind backers unwilling to consider the allegations against their nominee, there is large support for diffusing the politics of the Supreme Court.

Among the most radical proposals comes from a Vox interview with Mark Tushnet, who said Americans should abolish the Supreme Court. Slightly less radical and less likely to cause an imbalance in the Constitutional separation of powers, Kyle Sammin suggests packing the courts so the increase in justices will dilute and provide for a more balanced judgment on the Constitutionality of laws and measures in the United States. Others have proposed an 18-year term limit for justices, likely to ensure the Court remains more in tune with the times and the era in which they were first installed. It would also inject some specificity into the ambiguity of the length of service laid out in Article III, Section I.

As political scientists can tell you, the grievance against the politicization of the Court is well-founded. Despite the idea of holding the justices above politics and giving them their own mystique, they have indeed been politicized long after the Founding Fathers’ dream of a non-partisan republic has waned. Here we are in the thick of polarization, and every time a justice becomes unable to serve, it sends panic to the political camps not currently in executive power. Each appointment seems to spell doomsday for one side of the debate.

There are certainly times for compromise, but there are times in which one side or the other is just right. The idea of moderateness is a long-held virtue of the judiciary. In the history of the Supreme Court, only once has a Justice been impeached, and that was in the case of Samuel Chase for being too partisan.

Some have argued justices should be elected. That might be too large a constitutional shift. In my opinion, that would be caving to the problem of hyper-partisanship. The majority’s constantly changing view of constitutionality would then have the potential to drastically mutate the laws of the country for a generation should radicals end up taking the High Bench.

Some reform seems just, since the Supreme Court is the one branch of government in which the electorate has no say after an appointment is complete. Within the Republican Party, many have found issue even now, particularly within the camp of Ben Shapiro. The Daily Wire editor-in-chief has called out Kavanaugh’s decision not to hear a case about defunding Planned Parenthood. The notion that the victor of a hard-fought battle just last year may not be satisfying to Republicans’ key issues may be in line with President Trump’s pre-campaign history as a pro-choice advocate.

In the plethora of political camps in the United States, it’s indeed hard to satisfy everyone, and at the end of the day, an argument is either right or wrong.

That is the defining importance of the Court.

The Constitution leaves a lot open in regards to the length of a justice’s service. It’s open to interpretation. Rather than solidify the idea that justices serve a life-term, it may be time to make a compromise around the key debates in the form of a “retention election.”

Retention elections are used in several states, including my home state of Missouri, sourced out of a specific plan intended to keep corruption out of the courts. The name is fairly oxymoronic since the voters don’t put judges into office under this policy, but instead choose whether or not to keep the judges appointed by the governor after a few years.

As many would argue, a vote for a President is a vicarious vote for an interpretation of the Constitution should that Commander-in-Chief has the opportunity to make an appointment. Under my proposal, the Justices would be spared the campaigning muck of typical elections and instead be appointed; after a term, they face public scrutiny on whether or not they should remain in their seat. A matter of four to six years would certainly be long enough for the public to get an idea of each new justice, and following that period, they would be given the de facto opportunity to “impeach” members who might be causing damage to the Constitution.

This would in effect allow the public to judge what is or is not “good behavior.” It would reactively hold justices accountable to the Court of Public Opinion, with which they have commonly aligned and holstered themselves, all while maintaining their independence from the executive and legislative branches. Ideally, it would place pressure on justices, but in a way that would encourage them to be principled, staggering the Court in order to balance out partisan influence reflected by the populace. This would also rebuff either side of a certain debate from encroaching into the Court on activist grounds, and a lack of re-election campaigns would keep them true to their Constitutional convictions and not the public’s whims.

This would not necessarily mean the Court would be hurled in the opposite direction should a justice not be retained, since the same president would have the opportunity to replace them, depending on the number of terms that president serves. However, it may also give the other party the chance to balance their predecessor if the justice is voted out during their term.

Without formally altering the mystique of the judiciary, the electorate would be able to counter the politics of the Court. This would allow them to check and balance the judicial branch through the vote like the legislature and executive branch but in a more reactive way.

How many terms and years the justices would then be set up to serve is open to debate. However, the idea they should be up for retention at regular intervals would likely make the system more stable. Anyone to draft the reform would need to also address whether or not current justices would nee tod be subjected to retention votes. Major issues have widely been pumped into the Supreme Court from countless places in the country. The future will be no different.

If we are to ensure the justices represent the Constitution and our nation’s values, it’s likely time to take steps to hold them to a reasonable level of accountability.