I am tired about this repeated call of how every president picking the judiciary is the end all be all of politics. From back in 2000 when I heard a dumbass liberal make with complete sincerity the point that “If Bush gets elected then he’ll appoint judges that will outlaw abortion” as if the Court has any power to do that, to now “Well Trump will pick better judges” yes because the one man with a longer history of liberalism, socialism, racism, and corruption than Hillary Clinton is going to pick conservative judges (not to mention get them past the Democratic Senate he helped put in place). On both sides this is just the height of stupidity. The court is not the end all be all of existence. Nor should it be. It is one branch among three and it supposed to be checked by the other two as well as check them. This constant fear that we have about the court shows how far off from checks and balances we’ve gotten.
Yes, this is partly forgivable. Article III of the Constitution is the shortest and least detailed of any of the first three articles which create the three branches of government. Why? Because while everyone at the Constitutional convention understood you need a Judiciary power to be separate from the executive and legislative, a branch to give the final call on what is Constitutional, and to be the final arbiter in disputes…they didn’t have much to go on. Before the United States almost every court in history was actually the puppet of the executive or legislative authority. The examples of independent courts were few, limited, and very unhelpful.
But, as with most things, this actually wasn’t a problem so long as we had sane people in government. The Marshall court laid down some of the most important rulings in the history of the United States in the early days of the union, decisions so basic and foundational to our system of government and capitalism that it hasn’t been until the advent of Trump’s fascist party that anyone has thought to challenge them.
But certain things have made the courts the monster that it is now…but the problem is not in the justices we send to the bench.
The fault, dear Brutus, is not in our courts but in ourselves.
First off the two branches that were supposed to keep the Court and its power in check were the Presidency that nominated candidates, and the Senate which confirmed them. The Founders were quite wise in picking these two branches of government to check and balance the Court. Why? Because the President was not elected by the popular whim but by Electoral College voters, who themselves were chosen because their character and intelligence and not just to follow the whim of the people. And the Senate equally was chosen by the state governors and legislatures working together to find the most wise, stable, and respected souls to sit in the upper house of the federal legislative branch. Thus, the court was not only free from being victim to the whims of the public opinion by not being elected, but they were put in place by people who were one to two steps removed the same petty factions and bickering of the mob. Or that was the way it was supposed to be. Almost immediately the Electoral College electors became subject to popular vote (think of how nice it would be right now if they didn’t have to follow that, not one vote would be for Hillary or Trump). But things still weren’t too bad, mainly because the Senate was still fairly removed from too much popular opinion and what was best for their state and the nation was still slightly more important then getting the majority, the hoi polloi to like them. But then came the 17th Amendment. Next to the 18th Amendment, probably the biggest blight that we inflicted on the Constitution after its adoption. And certainly the most part of the Constitution that needs to be removed with all due haste. Popularly elect Senators, thus the people most trusted to vet Supreme Court members are no longer the most respected statesmen, but rather the biggest hacks you can get to capture the whims of the public at the moment with the most meaningless issues. If you study Supreme Court law, while there are horrific things like Dred Scott before the adoption of the 17th Amendment (a decision in its own way bowed to popular opinion) but most of the most idiotic justices and the most idiotic ruling come after the passage of the 17th Amendment because no longer are justices removed from whims of the public, judging only on issues of Constitutional merit—no, now they’re picked not for their wisdom of jurisprudence but for how many point’s they’ll get you in your election bid, how many of your laws they’ll defend right now, and support or opposed not based on their knowledge and wisdom but whether it will look good on the camera to do so. Can’t possibly see why this would go wrong.
But the biggest problem one might think is that the justices are attempting to legislate from the bench. And while there might seem to be merit to this, one should remember that it primarily comes from people asking for the courts to legislate from the bench. Don’t like abortion laws in other states than your own, take the case to court. Don’t like how much funding your pet project is getting, take the case to court. Don’t like that someone is an asshole, take the case to court. Yes, there are times and places to take things to court, but we are an overly litigious society and we have come to rely on the courts to legislate for us. Heaven forbid we work out our differences without arbitration, heaven forbid we do what we’re supposed to do and if we find something offensive or in need of change we first and foremost try to solve the problem through private action and then if that doesn’t work through legislation, then and only then if that fails do you take your problems to court. Regrettably nowadays everyone takes their problems to court. Right and left, libertarian and statist, everybody goes to court first and foremost to court. We are responsible for making the courts the place for legislation, so we certainly can’t blame judges for doing exactly what we as a society are asking them to do.
So, that said how do we bring back sanity, restore the court to its proper place as only the 2nd most powerful branch, and keep the decisions it passes down in line with Constitutional intent.
1. We need to put the Supreme Court on hold for a while. Obama, Clinton, or Trump…the fact is that none of these idiots are qualified to pick a Supreme Court Justice. So, Congress needs to lower the number of Justices on the Supreme Court to Five. That would mean as three more retire or die they won’t be replaced. That’s the easy part.
2. The easiest way to get better judges is actually by improving the legislature. The Senate was supposed to be a body that wasn’t directly elected by the public; they were supposed to be elected by the state legislatures which would remove them from being subject to the whims of a fickle public. Granted they would be more beholden to the whims of legislators in the state but there is no way to get an elected official who is not beholden to someone. By putting the Senate back to being representative of the states and not the people will ensure that they are not beholden to the whim of media or public opinion. Now if we did this we should probably also give the public of every state the right to recall (which is actually far more important as any manager can tell you, hiring people is often a crap shoot and can easily be fixed so long as you can fire them if they’re not performing up to par.
3. Now that we have the actual court members taken care of we need to make sure that people don’t use the court as legislation. My suggestion here would that an amendment should be passed that while a court decision can be decided by a majority vote, to be used as precedence in any other case it must be decided by a majority plus one vote. Honestly I would like to see this suggestion put into practice somewhere as it’s hard to say what the actual implications might be, but while it might seem like this would lead to more court cases (as more cases would have to be tried) I feel it will result in fewer cases being brought to court as people will not have the incentive to get a court ruling as the likelihood of just getting more than just a majority vote is very low. So, if you want something changed your best case is to push for the legislature to do it. Again, I realize that there are a lot of unknowns on how this would progress, and I’m open to any serious discussion of how to better lower the incentives to take issues to court over legislative change, as it is the incentive structure not the power of the bench that is the problem. But regrettably this is the closest I can think of that is the Constitutional law equivalent of tort reform.
4. This should go without saying as it is an issue that affects not only the judiciary but all walks of life: as much power as possible needs to be sent back to the states from the federal government. About half of the things we call on the courts to rule on are in that grey area between culture and rights. By moving as much power as possible back to the states some states will adopt policies that some people want, and others will adopt policies that others want. And these policies will have to compete in not just the marketplace of ideas, but the actual marketplace and we will see what leads to the most prosperous states and which then likely be adopted by the majority of states on their own. Will there be hold outs? Sure. But I think the benefit from a couple of states holding a bad policy is better than the risk of a court that can make bad policy a precedent that is almost impossible to overturn.
5. The last is that a super majority of the Supreme Court (let’s say 4/5ths) can call for states to have a Constitutional convention on specific issues. This way they can free up their calendar so they don’t have to rule on the same stupid cases over and over again. These conventions would be checked by the fact that they would only be allowed to deal with the issue brought up by the court, and the court’s power would be checked by the fact that they would have little to no control over how the states’ representative may choose to edit their suggestion and again by the three-fourths bar to get an Amendment ratified.
Granted these are not easy things to do…but let’s be honest which is easier, some policy changes and a few Amendments or making sure you have a competent president who will pick good justices who will not legislate from the bench and a Senate who will always confirm them. Amendments are easier, and Amendments and policy changes address the core of the problem, that if we as a society work to let the judiciary legislate because of a screwed up incentive structure that makes it easier to change policy through the courts. That incorrect structure of incentives is what needs to change more than anything and these five suggestions are what would do that…and anyone who still bitches about a this or that presidential candidate is better because of the justices they will pick is clearly only thinking in short-term lunacy that will perpetuate the problem.