Is There a Real Solution to the Lawlessness of the Supreme Court?

Senator Ted Cruz has penned a powerful article appearing in NRO that states the case for dealing with the lawlessness of the Supreme Court.

The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.

Rendering the justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly.

Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

Why would a Constitutional conservative like Cruz propose something that flies in the face of the intent of the Founders with regards to lifetime appointments to the Supreme Court? As Cruz correctly points out, it was believed that impeachment was a strong enough antidote to judicial tyranny at the time, although the Jeffersonians, who were always suspicious of the Supreme Court, concluded early on that impeachment wasn’t enough of a deterrent.

The reason we don’t elect Supreme Court justices is because they are supposed to be above politics. This has always been a rather fanciful idea given that there are probably no more avid readers of the polls than SCOTUS. They already bend to political winds. How much more would that be true if they faced recall elections?

Even a proposal like Cruz’s to hold a “retention vote” every 8 years would bring up the same problems we would encounter with electing justices in the first place.  But if the justices aren’t going to decide cases dispassionately based on Constitutional principles anyway, perhaps Cruz is right that it’s time to hold the Supreme Court justices accountable to the people.