Understanding the Constitution #16: Politics and the Judiciary – An Undesirable Mix
Conservatives have been both pleased and displeased with the judiciary in recent years. They now dominate the Supreme Court, but they lost more than 60 lawsuits seeking to overturn the 2020 presidential election. Liberals have applauded those lost lawsuits but attacked the conservative Court. Partisans in both camps think the ideal judiciary is one stocked with judges who agree with them. That’s a dangerous goal and misunderstands what the Constitution’s framers hoped for the third branch of the national government.
In Federalist #78, Alexander Hamilton explained the thinking behind Article III, Section 1: the federal judiciary is to be a “barrier to encroachments and oppressions of the representative body” which is only possible “so long as the judiciary remains truly distinct from both the legislature and the executive.” To support such independence, justices for all federal courts have lifetime appointments “during good Behavior” and compensation that “shall not be diminished during their Continuance in Office.”
The apolitical administration of justice is the bane of Americans who want federal courts they can ideologically count upon. Yet it is essential to their legitimacy and to fostering public faith in and adherence to the rule of law. Since Democrats abandoned the filibuster for lower federal court confirmations and then Republicans abandoned it for Supreme Court nominees, appointments to the federal bench are now seen as controlled by party politics. This helps explain the recent Gallup Poll showing approval of “the way the Supreme Court is doing its job” fell from 62 to 40 percent from 2001- 2021.
While Article III ignores state courts, the impartial administration of justice without control by state executive and legislative branches is also desirable. Ninety-five percent of all cases heard in the nation’s highest courts occur at the state level, so intruding partisan politics into those decisions damages their legitimacy too. Yet 38 states use elections to pick high court judges, and 90 percent of state appellate court judges face some kind of election. In some states, candidates run on party tickets, but even in non-partisan elections it’s not hard for voters to learn what candidate their party prefers, especially when parties advertise heavily to tell them. In 2002, the Supreme Court in Republican Party of Minnesota v. White, struck down rules barring judicial candidates from announcing their positions on legal and policy issues. Coupled with its 2010 decision in Citizens United, which prohibits government from restricting contributions to political campaigns by corporations, labor unions and interest groups, money now flows into state judicial elections. Not surprisingly, a review of the role of politics in state courts by University of California-Irvine’s Richard Hasen found that “in retention elections [where an appointed judge faces the electorate after an initial term] . . . judges facing a Republican electorate will issue more conservative decisions and those facing a Democratic electorate will issue more liberal decisions.”
The success of political parties and their faithful in stocking the judiciary bodes ill for democracy. We can now frighteningly imagine a presidential election in which state and federal courts make partisan decisions on cases involving voting procedures, vote counts and electoral votes. Due to declining trust in those courts, we can also imagine open defiance of their decisions and a literal call to arms to support that defiance.
That’s not the only worry. The increasing desire to turn the judiciary into a willing captive of a political party weakens the Constitution’s design of using contending sources of power to protect liberty. If justices are the creation of party leaders in the other branches of government, the courts as the last resort to prevent autocratic government becomes a weakened barrier. When that happens, the protection of due process and minority rights is at great risk. This may seem fine to Americans who see their party as always in control of all three branches, but a government that can more easily restrict the rights of minorities can do so for them as well.
Politicizing the judicial function has recently advanced even in the Executive Branch, where over 2,000 Administrative Law Judges (ALJs) render thousands of decisions every year in such agencies as the Social Security Administration and the Department of Labor. In 2018, the Supreme Court in Lucia vs. SEC ruled that the president and politically appointed agency heads must now appoint ALJs, not career agency staff and that these positions are no longer in the competitive service. This opens such appointments, which lack tenure, to political influence.
Efforts to politicize the judiciary will continue, driven by polarized parties, a polarized electorate and “dark money.” President Biden created the Presidential Commission on the Supreme Court of the United States, but its recent report that examined this problem took no position on possible remedies. Those intent on making judicial decisions more politically predictable should be wary of what they wish for. What may be good for them in the short term could destroy a bedrock principle of Constitutional design in the long term – and with it the judicial independence essential to protect American liberties.
Photo Credit: supremecourt.gov
