Why are so many people on all sides so angry about the United States Supreme Court life-time appointment? The answer may be in the question: it is an appointment and it is for life.
The true genius of the Founding Fathers was they understood power corrupts and since human beings constantly seek power it must be diffused into three branches of government. What they did not anticipate was that the Supreme Court, the Judicial Branch, would slyly usurp the power of the Executive and Legislative branches, starting with Chief Justice John Marshall and the case of Marbury versus Madison in 1803 in which the Supreme Court declared it had the power to review and invalidate or validate decisions of the other Branches.
This power of review established an inequality among the three Branches that has grown to a crisis. Where the Judicial leg of the stool has neither power of the purse nor the gun, this power of review protrudes causing an imbalance. This is exacerbated by the appointment of the justices and the manner in which the appointments are made. They are appointed for life by one person, the President, with the “advice and consent” of the Senate, i.e., one hundred more people.
Whereas the public has the right to vote for the President and each member of Congress, the public is shut out of choosing the extraordinarily powerful people in the Judicial Branch. This causes great concern for contesting groups when such personal issues as health care, police powers, control of one’s body, and distribution of tax monies may work their way from the legislative and executive bodies to the courts. For it is more true today than ever that as the visiting French philosopher and tourist Alexis de Tocqueville declared in 1835: in America, eventually every political question becomes a judicial one.
With the President, every four years we can make a change. With members of the House of Representatives, every two years the entire House can be changed and with the Senate, if we wish, in six years we can choose someone else. That is the crux of why people are so desperate to influence the choice of a Supreme Court Justice, i.e., it is not a choice made by them and it is for life.
It seems to me a rational solution is to change how we select our federal judges. Of course, I think all judges at all levels should be elected in a modified non-partisan election, but today we are just addressing the federal food fight that embarrasses and endangers us all. I suggest we put any future Supreme Court replacement on the ballot and limit their term. Of course, this will require amending the Constitution, but the Constitution has been amended many times before. Power to the People, not the politicians, is worth considering and worth the trouble it will take to make the change.
An interesting perspective, but I believe the premise is flawed; judicial decisions are not unreviewable as the political branches have the power to pass laws which invalidate court opinions. In that respect, Marbury v Madison simply clarified that the judicial branch has the same power to invalidate the decisions of the other branches as the two political branches already possess. This ensures a true balance of power between the political branches, which are subject to the passions of the moment, and the judiciary which is not. Judicial review is built in as a brake against rash political decision-making.
Most cases are not decided upon constitutional grounds, so if the political branches disagree with a court striking down a law, this simply requires passing legislation to address the deficiency cited by the court. Even where the court cites to a constitutional basis, the political branches retain the power to change the constitution to effectively invalidate the judicial opinion.
In addition, since the political branches appoint federal judges, they can counteract a wayward judge by appointing additional judges to the bench who do not share the same predilections. If the judge’s conduct is extreme, that judge can be impeached. Since impeachment is a political process, the legislature gets to define what constitutes bad behavior sufficient to justify removal of the judge from office.
People may reasonably argue that these checks against concentrated power are not functioning well today. l believe the true deviation from constitutional expectations giving rise to this failure is not in judicial review, but rather in the increasing dominance of political parties. The framers were notably wary of political parties and for good reason. Checks and balances were designed so that government could police itself. So long as loyalty to the interests of the people as a whole governs governmental decision – making, the system functions. But political parties change that calculus where party loyalty and the preservation of its political power supercede dedication to acting for the benefit of the populace as a whole. Elected officials’ willingness to turn a blind eye to the malfeasance of a fellow member of their political party presents a true grave threat to our system of government.
Moreover, a hardening of loyalty to political parties offers a seductively easy way for the populace to cede their independent check against concentrated power. Political partisanship provides an easy escape from the hard work of engaged citizenship.