Judge For Yourself

(Part two of the discussion on Constitutional changes relating to the Judiciary.)

Republican presidential candidate Mitt Romney says rival Newt Gingrich's idea to send Capitol Police or U.S. marshals to bring judges before lawmakers to explain their decisions is neither practical nor constitutional.

Romney says the answer to out-of-control judges is not to tear up the Constitution and say that Congress is the ultimate power in the country. Instead, he says the Constitution should be followed when it comes to removing judges or reversing judicial decisions.ⁱ

Judicial activism is raising a lot of political hackles. Whether a particular action is justified,ⁱⁱ there is no question that the power of the courts to “interpret” the law also allows them to create it. That is why the ability to appoint Supreme Court Justices (and other Federal Judges) is one of the most important of the President – an idea that is loudly proclaimed in the presidential campaign. It is why judicial policy is such an important part of the debate when politicians frame their platforms. And, to a degree, it's fruitless to argue that the Justices' actions violate the Constitution, since they're the ones who will make such a determination.

A typical example involves privacy. Although it is never mentioned in the Constitution, and despite the Tenth Amendment which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” in Griswold v Connecticutⁱⁱⁱ the Court found that privacy was guaranteed by the Constitution. The First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, said the Court, provided such a guarantee, even if they didn't mention privacy. According to the majority, it existed in the “penumbras” and “emanations” of other protections offered by the Constitution. Thus Connecticut's law against contraception was unconstitutional. This decision was not “reserved to the States” despite the Constitution. And in 1973, in Roe v Wade^iv and Doe v Bolton,^v the same doctrine of privacy was the basis for sanction of abortion – also not mentioned in the Constitution. Because of the opinions of individual Justices about the importance of privacy and the propriety of contraception and abortion, since these matters were not treated in the Constitution, hooks had to be found to justify these personal opinions and judicial decisions. The Court was, in reality, legislating.

It is not at all clear that the Founding Fathers intended that Justices with lifetime appointments should have this power, but that is the way it has turned out, and no one questions it any more. Perhaps, however, that situation should be reviewed. Although “We the People” may have been the originators of the Constitution,^vi “They the Courts” have arrogated to themselves the definition of what “We” meant, and what is right for us. If there is to be any meaningful system of checks and balances, we need to rethink the system under which we live and, possibly, revise it.

Someone has to have the responsibility of determining what our laws mean. That's not arguable.^vii And the judiciary created by the Constitution seems to be the appropriate party. But with the goal of a court system which will consider public opinion – even if it does not accede to it – some alternative measures are worth exploring. After some basic questions are posed.

Should judges be elected? Should they be designated by experts? How can we make them more responsive to public wishes? Should we? How, if we do so, do we protect minorities? Is there any way to review laws passed by Congress, and court decisions? To what degree should public opinion play a part in such reviews?

Before answering these questions, though, it is important to note that “activism” is not solely a feature of the judiciary. The legislative branch – Congress – spends most of its time in activism – framing laws that will govern our actions. We may not agree with these laws but we're bound by them as long as they are on the books. And the executive – the President – will frequently issue “Presidential Orders,” often covering areas of law or procedure that he believes have not been dealt with properly by Congress.^viii In these instances – regarding the legislative and the executive branches – however, at least in theory, the average citizen's opinion will be heard by legislators and the executive (or their staffs) and it could conceivably have some impact. And the various players will be up for election within two to six years. That doesn't mean that they will necessarily follow the wishes of the voters – in fact representative democracy gives them the power to superimpose their own judgments over those of the voters – but it makes responsiveness more likely and provides remedies for dealing with those who wander too far from the wishes of their constituents.

At present, however, those options don't apply to the courts. The executive has the power to make appointments, and the Senate has the responsibility of advising on such appointments and consenting to them, but once the appointment has been confirmed it comes with lifetime tenure. True, a Judge can be impeached, but that is for a violation of the law, not for deciding what the law is. And voters play no part at any point in the process. The Federalists, who largely set the rules now in the Constitution, didn't trust the “people” to make those decisions, only the elite, so the rules reserved the appointment of judges to members of the Federal government – men they believed better able to make such important choices. And they wished the noble individuals so chosen to be insulated from public opinion. They would have the final word and they would never have to justify it. No one could call their decisions into question, and no one could do anything about it.

The time has come to reconsider this system. “We the People” are entitled to have our voices heard in judicial decisions as well as those of the executive and legislative branches. And the only way to do so is by altering the Constitution itself. Because, short of a constitutional convention and a rewriting of the document, major changes must come one at a time, the suggestions I offer are few – if far-reaching.

First of all, some consideration should be given to the method of choosing Justices. The current system of choice by the President guarantees that the appointment will be based on doctrinal issues and, since the Justice is likely to outlive the political administration, the Court's complexion may ultimately be out of touch with public opinion. This is not to suggest that public opinion should be the measure of the law, only that it is subject to change, and legal expertise, not political expediency, should be the main criterion for selection. A non-partisan commission of some kind could recommend a short list of highly qualified candidates – and views on particular issues would not be considered, only the qualifications of knowledge, wisdom, and understanding along with a sense of the popular mood. One from the list of candidates would be chosen by a committee consisting of the leaders of both (or all) major political parties. If agreement were not possible within a short fixed period of time, the choice would go to a preselected group selected by the American Bar Association. Some doctrinal litmus tests are likely to be used. They're unavoidable. But the choice will be less a political one than is currently the case.

And once appointed, the Justices would have the benefit^ix of periodic review. How might this be done? In the age of the internet, access is, or should be, available to all. Whether this is at home or in a public facility,^x every citizen might be given the opportunity to vote on each Justice at (for example) ten year intervals following his or her appointment.^xi The voting website could include a listing of “significant”^xii positions on cases decided by the Court since the individual's previous “review,” with a short evaluation by the Bar Association or another independent group. A Justice could be voted out of “office” if two-thirds or three-quarters of voters felt his (her) views were unrepresentative. In a country having a majority of “minorities,” a nation of the “Melting Pot,”^xiii it is unlikely that anyone would be removed for protecting minority rights. Congress would still have the responsibility of impeachment for legal offenses.

A regular review of Supreme Court decisions should also be held on line. A “bottom line” summary of the decision might be accompanied by short analyses of its impact. Those analyses would be offered by those who argued the case or provided friend of the court briefs. Here voters would have the opportunity to render opinions on the wisdom of the decision. While they would not be able to overturn the Court, their views would provide information for legislators or others who might initiate the process of introducing legislation, or of a constitutional amendment that would deal with the effects of the decision. As was the case with the evaluation of the Justices, and for the same reasons, it is unlikely that minority rights will be compromised.

The non-political choice of Justices, and the giving to voters of the chance to express their opinions on Supreme Court Justices, would represent a start in the process of producing opinions that are more in keeping with the law, rather than the politics of the party in power when the individual Justices were appointed. By allowing voters to express their views regarding Court decisions, the Justices would be put on notice of when their personal opinions are not shared by the public at-large. And it would provide information for those who might want to propose legislation to remedy the issue of concern.

It's likely that many will fear that Justices would be under pressure to bend to public opinion. With evaluation only every ten years or so, that's not likely. But even if it is, is that so bad? We the People should have some say regarding the “final” decisions that rule our country.

Next episode: “Chekhov's Gun” – Consider the alternatives.

i       Associated Press report. December 19, 2011.

ii     Though by whose standards would be difficult to say .

iii     Griswold v Connecticut, 381 U.S. 479 (1965)

iv    Roe v Wade, 410, U.S. 113 (1973)

v     Doe v Bolton, 410, U.S. 179 (1973)

vi      It's not really the case, but I'll deal with that some other time.

vii    Even if you believe the law should be explicit and without the need to be interpreted, there will always be unanticipated situations, nuances, and variations that require the judgment of someone, or some people, who understand the law and the political landscape, better than the average citizen. That, of course, is not to say that the electorate shouldn't have input into interpretations of the law.

viii   On January 4, 2012, President Obama issued several “recess appointments” to positions that were open. The President has this right, the pocket veto, and several others which evade the control of Congress. In this particular instance the Senate – which is supposed to advise and consent concerning such appointments – was not in recess, so the act was probably illegal, but the President considered it justified because he didn't expect help from Congress.

ix    It is assumed that the Justices would benefit from this kind of evaluation. But you know what they say about assumptions.

x     Like a public library.

xi    For more on the use of computers for voting, and the encouragement to do so, see One Liners – Part Two, a prior essay on this site, that appeared December 25, 2011.

xii    Whatever that means.

xiii   And especially if, like Glazer and Moynihan, you believe that “the melting pot metaphor [doesn't] hold water” – that ethnic minorities retain their individual characters and separateness.