Retention Elections at the Supreme Court

September 21, 2015

The United States Supreme Court is comprised of nine justices. Presently, their age span is 82 to 55, with four justices—Ginsburg, Scalia, Kennedy, and Breyer—between 77 and 82. On January 20, 2017, those four justices will be 83, 80, 80, and 78, respectively. They will also have been serving for 23, 30, 28, and 22 years, respectively.

My point? The 2016 election may be about only one thing which really matters: the composition of the U.S. Supreme Court.

Many people holler about the Supreme Court. Some people are genuinely concerned about a group of people who come from remarkably similar professional backgrounds. Read Is the Court We Have the Court We Want?, which I wrote in May 2014, for some perspective.

Others worry about age. That’s a not insignificant concern, although I suspect Justice Breyer’s experience would leave way behind if we hopped on our bicycles.

Then there are those people who rant about “activist” judges. Definition of an “activist” judge? A judge with whom someone disagrees.

Senator Ted Cruz (R-Tex.) has big problems with “activist” judges. Senator Cruz, who wants to be the man who picks some members of the Court, claims “tragic” Court decisions arise out of “judicial activism.” (Leah Jessen wrote Ted Cruz: ‘Tragic’ Supreme Court Decisions Are ‘Judicial Activism’ for on June 28.)

Senator Cruz—whose career came about, significantly, because he clerked for Chief Justice William Rehnquist during the 1996-97 Term—has a solution for judicial activism. He wants to amend the Constitution to provide for retention elections for Supreme Court justices. The appointment process would stay the same, presumably, but every several years each justice would face an up or down vote on staying in office.

As it happens we have a laboratory for this concept, in Arizona and many other states. Arizona adopted merit selection in 1974 for its Supreme Court, Court of Appeals, and Superior Courts in counties with more than 250,000 residents. Justices and judges who are selected under merit selection—as opposed to Superior Court judges in smaller counties, who are elected—are on the ballot every four years. The ballot asks: “Should — be retained?” If — receive more no votes than yes votes, — is looking for work.

Albert Klumpp wrote Arizona Judicial Retention: Three Decades of Elections and Candidates for Arizona Attorney, the State Bar of Arizona’s excellent magazine, in November 2008. In his piece he refers to 735 justices and judges on the ballot. And how many were not retained? Two. And the last seven years have seen no difference, as one or two judges may have been rejected by voters.

Other states use similar merit selection/retention systems. Results are not materially different anywhere, but for the fact that in a few cases major hot button issues have resulted in the removal of Supreme Court justices. In 2010, for example, three Iowa justices lost their jobs because of their same-sex ruling. And in 1986 California voters tossed Chief Justice Rose Bird, a death penalty opponent

In New State Ice Co. v. Leibmann, Justice Louis Brandeis advocated for states as laboratories to “try novel social and economic experiments without harm to the rest of the country.” So, does it make sense to heed Senator Cruz? (Stop laughing, everybody! I’m serious.) Have we run a good experiment?

The answer is no, and here’s why. Retention is the trade off at the state level for taking the right to select judges away from voters. At the federal level, however, voters never had that right. Thus, while there is a superficial similarity between state merit selection systems, much gets lost in the translation. Or, if we’re in the lab, we’d call it bad science.

In addition, the Supreme Court deals with the hardest of hard questions, mostly. State court judges don’t, nearly as often. Our nation is more than adequately politicized and, for sure, the Supreme Court lacks immunity from the process. However, turning the Court into something akin to another elected body will make matters much, much worse.

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