“Why not upset the apple cart? If you don’t, the apples will rot anyway.” – Frank A. Clark
A republic is sometimes like the human body; we work in proper shape for years, and suddenly a piece of the machine no longer functions as it should. When this happens, we generally don’t just get rid of that piece, as most of our pieces are quite vital; we take steps to fix what’s broken.
A once functioning piece of our republic has become dilapidated; it has begun to rot. The Supreme Court–whether or not you’re pleased with the outcome of Thursday’s and Friday’s rulings—made those decisions outside their intended scope of ability. SCOTUS Justices are supposed to be—as John Roberts once put it—umpires in the game of constitutional law. They are no longer that.
We have a Supreme Court that is actively rewriting laws—Obamacare, twice—and issuing decrees for the entire people that have supplanted the democratic process in all 50 states. SCOTUS has overstepped its bounds. Even Chief Justice John Roberts (the guy who rewrote Obamacare twice) said the following of the same-sex marriage ruling:
“Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.”
He then argued—as did Justice Antonin Scalia—that the majority’s ruling was flimsy as it was based in due process.
“Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. But the Court ends this debate, in an opinion lacking even a thin veneer of law.”
The court, even in the opinion of some of the judges, has become an activist branch rather than an arbitrator. This has led to ideas from several Republican presidential candidates, as well as numerous conservative legal minds.
Ted Cruz has proposed an amendment to the constitution which would call for judicial retention elections every eight years. The details are being hashed out, but basically, every eight years or so, the American people would get to judge the Justices.
On “Meet the Press,” Cruz was asked by host Chuck Todd: “Doesn’t that politicize the Court more?…It weakens the Judiciary branch, does it not?”
“It is the Justices who have politicized the court. They are the ones who have stepped in to try to resolve every policy matter. They shouldn’t be rewriting Obamacare. Chief Justice Roberts used the analogy of an umpire calling balls and strikes. They stopped being an umpire; they became a player on a team…they erased terms in the statute and rewrote it, joining the Obama administration. That was wrong. And that’s why I reluctantly called for a constitutional amendment for periodic judicial retention elections.”
Ilya Shapiro, editor-in-chief of the Cato Supreme Court Review argues for a different possibility:
“If we are going to tweak the Supreme Court because it’s not sufficiently responsive to the people, adding an election element isn’t the way to go…If the federal judiciary were to borrow a structural element from the states, I’d go with term limits rather than retention elections.”
Mike Huckabee echoed Shapiro’s sentiments when he said:
“I also think when a person can be appointed to the Supreme Court and stay there for 40 years, my gosh, they might have outlived, you know, six or seven presidents during that course of time. I’m just not sure that that’s a healthy thing. By the way, Thomas Jefferson wanted there to be term limits for members of the Supreme Court, pushed for it. But the consensus was, nobody will stay that long. It’s not necessary to put it in the Constitution.”
And it’s true that the constitution is so vague regarding the tenure of the Supreme Court Justices that it leaves the possibility of term limits open to addition. Article III, section one of the constitution simply states “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.”
Well, what defines good behavior? Does judicial activism, such as literally rewriting the law to satisfy one’s own ideology, constitute bad behavior? If so, we need to have in place some means by which Justices can be held accountable. As it stands, they are impervious to us.
Personally, I argue for term limits of somewhere between 16 to 18 years—perhaps even less. SCOTUS has become a rogues’ gallery to which the rule of law does not apply, and their status as a protected class must come to an end. Whether that’s achieved through term limits or judicial retention elections, it’s time.
Judicial activism is one of a few things that can swiftly and indelibly change our republic for the worse. It has the power to beak the dam of our carefully devised system. If we don’t take hold of this momentum now to rein them in, we may lose it forever.