What does it mean that we now practically elect our Supreme Court justices?
True, they’re supposed to be nominated by the president and confirmed by the Senate, not elected, but that’s becoming a quaint anachronism like other parts of the Constitution — the emoluments clause, say, or the idea that laws come from votes in Congress rather than executive orders.
In 2016, Donald Trump didn’t simply promise to name conservative justices, he became the first presidential candidate to release a list of actual people, lower court judges, he’d nominate for the Supreme Court. When conservatives pulled the lever for Mr. Trump that year, they knew they were also electing one or more of these judges to fill Justice Antonin Scalia’s seat. The list, which included Neil Gorsuch, is widely credited with helping Mr. Trump win the White House.
Now President Trump is at it again: He named 20 new conservatives he’d consider for the court in a second term. “Candidates for president owe the American people a specific list of the individuals,” he claimed, so people can “properly make a decision as to how they will vote.”
Some liberal groups have urged Joe Biden to release his own list. During the Democratic primaries, he said he would offer “no names.” But he did commit to appointing a Black woman. All but one of the justices named since 1975 have been lower court judges, and there are (regrettably) only 10 Black women on federal and state supreme courts younger than 55 and appointed by Democrats. So Mr. Biden and his voters more or less have a list, too.
Putting the names of actual, would-be justices on the quadrennial ballot goes far beyond general critiques of the court in past elections or even promising to choose from a certain demographic. The more lists of potential nominees become the norm, which seems likely given their political potency, the more they’ll threaten to distort how we see the judiciary and how it actually behaves.
Some Republicans view a list as a way to squash the judicial independence still exhibited by Justice Gorsuch (who wrote the decision in Bostock v. Clayton County, which banned job discrimination against gay employees) and Chief Justice John Roberts (who sided with liberal justices on the DACA decision). They want a guarantee for hard-line conservatives against future betrayal.
By contrast, a President Biden might be expected to at least consult Senate Republicans before choosing a nominee. After 36 years in the Senate, many leading the Judiciary Committee, he’s seen how nominations can crash and burn. He also cherishes the Senate as an institution.
Whoever’s president, inviting people to vote for justices can only increase the polarization already surrounding the court. A Gallup poll last month showed a rare convergence among Democrats and Republicans on support for the court at around 60 percent, likely because of the mixed bag of decisions issued at the end of last term. For liberals, in addition to the Bostock and DACA decisions, the court struck down a Louisiana abortion restriction. For conservatives, the justices consistently favored religious employers and schools.
But the last five years have also seen some of the largest partisan divides in polling over the court since 2000. Republicans’ insistence in 2016 that voters should decide who would succeed Justice Scalia hardened the growing sense that justices are simply tools of their appointing parties. And it spurred liberal proposals to drastically change the court — the number of justices, how they’re chosen and how long they serve.
Beyond public opinion, Supreme Court lists can only increase the temptation for lower court judges to audition for inclusion through unnecessary opinions pleasing to their party’s base. Even if a judge’s actual vote in a case isn’t affected, written opinions reverberate through the law, influencing other judges’ decisions, lawyers’ arguments and cases by advocacy groups. And even if actual nomination is a long shot, simply appearing on such a list adds luster to reputation and balms the ego.
Not long ago, for example, a judge issued a separate opinion concurring with his own more limited and technical opinion for the court. That is, he issued an entirely superfluous statement on a hot-button issue agreeing with himself. While we can’t know his motives for this unusual move — he may simply have wanted to influence developing law — it might not be a coincidence that he also made President Trump’s new list.
Finally, the sense that voters are electing justices could gradually change the way the justices see their role, and therefore how they do their jobs. Whenever a majority invalidates a law, dissenters and other critics denounce illegitimate judicial lawmaking by “unelected judges.” Ted Cruz — also on President Trump’s new list — condemned Bostock as the product of “six unelected and unaccountable judges” acting as “legislators.” Ironically, no justice has ever been more elected than Mr. Gorsuch, and Mr. Cruz helped do the electing when his party kept the seat vacant for a year.
There is a line, however blurry sometimes, between judging and legislating. Eventually, though, nominee lists may corrode that idea. For now, judicial independence lives on. Moreover, federal judges have life tenure, unlike elected state justices, which further ensures freedom of action.
But if Supreme Court justices understandably come to see a seat as just another elected office, how long before they act like other elected officials — decision makers armed with popular mandates supplied by loyal constituents?
In Federalist No. 78, Alexander Hamilton posited letting voters select judges for limited terms but rejected the idea because “there would be too great a disposition to consult popularity.”
He was right. We should stop putting Supreme Court justices on the ballot.
Martin J. Siegel is a lawyer in Houston and the author of a forthcoming biography of Judge Irving R. Kaufman.