Three of the United States Supreme Court’s own members Elena Kagan, Stephen Breyer and Sonia Sotomayor warn us the Court has appointed itself, instead of Congress or the EPA, the decision maker on climate policy. An outcome the three dissenters found frightening. See the dissenting opinion of Kagan as joined by Breyer and Sotomayor in West Virginia v. EPA decided June 30, 2022. What they meant was that the unelected Supreme Court installed the Judicial Branch as the policy maker for an issue, management of the environment, that should be within the Legislative Branch that is subject to democratic control, as the Court is not.
Most of us are unable to see the irony in our own actions. The same is true of the Supreme Court. The six-member majority of the Court couched its decision in terms of preserving policy making in Congress as opposed to unelected bureaucrats at the Environmental Protection Agency. But, according to the Dissent, what the Court did was simply replace the EPA with the Court as the ultimate decision maker on the broad, critical issues of environmental management.
In the similarly ironical decision Dobbs v. Jackson Women’s Health handed down 24 June 2022, the same majority set the U.S. Supreme Court up as the final policy maker on the volatile issue of abortion by deciding Roe v. Wade must be overturned and each state should decide the issue.
The same three dissenting justices warned in Dobbs that:
“The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, contributes to the actual and perceived integrity of the judicial process by ensuring that decisions are founded in the law rather than in the proclivities of individuals. Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.”
It is not the substance of either the EPA case or the abortion case that is our concern in today’s column. Those emotional issues of global warming and human reproduction are just too volatile and complicated to be adequately discussed in one short column. Instead, what I am struck by is the obtuseness of nine unelected, life-tenured people who arrogate themselves as final arbiters of issues so vital to the lives of 330 million Americans. Perhaps the Supreme Court has finally brought in to focus that the justices are merely politicians on a micro scale. What I wish to discuss is how we might retain our three equal branches of government through a macro democratic process.
Does any rational observer of the Court deny the justices are simply politicians who wear black dresses and pretend to be apolitical? The justices are not to blame. If you, Gentle Reader, or I were placed by Presidential nomination and Senate confirmation on the Court, we would take our prejudices and “proclivities” with us. The problem lies not with the members of the Court but with the undemocratic way they are selected coupled with their life-time tenure. It is our Court and our Constitution and we should change both.
We have amended our Constitution 27 times. We should do so again. I suggest that the members of the U.S. Supreme Court and all federal judges be elected in a non-partisan election for one 10-year term. Once their term is honorably served, we should pay them their full salary for life and they should never serve as a judge again. The impeachment process should remain an option in case we make a mistake.
In summary, federal judges are no better or no worse than the rest of us. They are human, they have “proclivities”, they are politicians. We should drop the façade of “philosopher kings” and have our federal judges recognized as a full-fledged branch of our democracy as selected via a democratic process.