Evan Katz

The death of Antonin Scalia last month left a vacancy on the Supreme Court’s nine-member bench. The ensuing battle over when to replace Scalia has taken center stage in the current election cycle, and, understandably, it’s taking place along party lines. Democrats want President Obama, who has more than ten months left in office, to use his constitutionally granted power to appoint a new justice and think the Republican-controlled Senate should follow suit by holding hearings. Republicans prefer to hold off the appointment process until the next President takes office so the election can be used as a referendum for what kind of justice the people want to succeed Scalia.

The appointment debacle has reintroduced an age-old question dating back to the Constitutional Convention: how should Supreme Court justices be put on the bench? Should they be appointed by the executive or elected by the people? How long should they serve? Should they have life terms, single terms, or multiple terms? Some people, leery of the undemocratic nature of vesting the power of appointment in the hands of the President (and the power of confirmation in the Senate), have called for scrapping our current system in favor of letting the American public decide. After all, the Supreme Court holds immense unchecked authority, including setting legal precedents, constitutional review, and the final say in all cases it chooses to hear. Others, like myself, prefer the current system of appointments for life terms. Here’s why:

1. Nonpartisanship

In Federalist No. 78, Alexander Hamilton, while arguing that the federal judiciary is the “weakest of the three departments of power,” and, therefore, poses the least amount of danger to constitutionally enumerated rights, points out that the independent nature of the Supreme Court allows its justices to avoid the factional politics inherent in the legislature and interpret the law from a neutral perspective. In other words, the judiciary has the advantage of operating from a nonpartisan standpoint because the separation of powers shields it from the partisanship that engulfs both other branches of government.

While justices can be considered conservative or liberal based on how they interpret the Constitution and law writ large, it’s rare that any justice adopts a firm, unwavering political ideology or affiliates with either party. Most are blank slates that can divorce themselves from their own personal opinions and view cases based on the law and the law alone. After all, justices are put on the bench because of their legal expertise, not their personal politics. Obviously, presidents – FDR is a great example of this – have an incentive to nominate justices that share their ideological dispositions and support of particular policy agendas, but the confirmation process helps to mitigate the most extreme instances of such nominations, as the threat of filibuster looms.

National elections, rather than eliminating ideological dispositions, would only polarize the Court. No election in this country, especially a national election with humongous implications on our political system, can avoid the inevitable involvement of political parties. With their massive donor apparatuses, name recognition, and huge amounts of sway, political parties will always find ways to sink their claws into important elections to ensure candidates that generally reflect their platforms have the tools necessary to mount successful campaigns.

Now, you might say that the involvement of political parties in the election of a Supreme Court justice is no different in practice than a President nominating a justice that aligns with his or her beliefs. But consider how elections work in this country. Inevitably, like with other elections, major parties would hold primary elections to determine which candidate to nominate for the position. Because primary elections reward candidates that move away from the center, it’s likely that both major parties would nominate polar opposites entrenched in their particular party’s ideology. On one side, you might have a very strict constructionist who disagrees with striking down all state laws on marriage and abortion and thinks that any form of gun regulation is unconstitutional. On the other, you might have a loose constructionist who thinks expansion of federal authority in all areas of life is legitimate. Because these justices would be firmly rooted in their party’s platform, they would output biased decisions in an attempt to achieve their party’s goals. The result? A hyperpolarized Supreme Court whose justices cannot separate their own personal beliefs from their interpretation of the law.

2. Qualifications

The Supreme Court should consist of the nation’s most brilliant legal minds to ensure the fair interpretation of the law. Other factors that might be important for a politician, like charisma, leadership skills, and money, should have zero influence on how our legal system works.

The populist claim that the people, rather than the elites, should decide who sits on the bench ignores the risks of demagogy. As it currently stands, the appointment process for Supreme Court justices ensures that the Senate only confirms the most qualified candidates for the job. In elections, however, qualifications and legal expertise can take a backseat to numerous other factors. The populace, itself less qualified to pick a candidate than the political elites, is more responsive to charismatic individuals and may be persuaded to vote for them even if they aren’t the most qualified legal minds. As has happened with recent presidential election cycles, self-proclaimed “outsiders” with zero legal experience could manage to get elected to the Supreme Court. Just imagine a Donald Trump, Supreme Court Justice edition: a charlatan with the charisma to incite anger with “jurisprudence as usual” could theoretically make their way to the bench if people buy into their message of challenging the legal mindsets of the establishment and changing how the law should be viewed, even in the absence of any legal knowledge whatsoever. Such a prospect poses plenty of risks to the functionality of the Supreme Court and our democracy as a whole.

Money would also play a large role in a Supreme Court election. More generally, I’m ambivalent on the role of money in campaign politics; individuals should have the right to donate to candidates as an act of political free speech, but the unregulated ability to do so enables interest groups and corporations to disproportionately influence politics. The election of Supreme Court justices, however, is an entirely different ball game than the election of members of Congress. Elections would turn into a money contest of sorts; whoever could accrue the most donations would, in theory, be put in the best position to win an election, which means justices backed and funded by the most interest groups, super PACs, and corporations would be most likely to succeed. This doesn’t mean whoever had the most money would automatically win an election, but it’s plausible that a less qualified candidate could win an election because he or she managed to afford more airtime for ads to persuade the public to vote a certain way.

3. Predictability of the Law

I would imagine that an overhaul of the judicial system would revisit life terms on the bench, and I don’t disagree with that idea. However, shortening terms and introducing term limits could have a detrimental impact on the predictability of our legal system. With shorter terms, the balance of the Court has the potential to swing back and forth every few years. This could create complications with the law because some Courts might overturn rulings from previous Courts, creating a never-ending cycle of back-and-forth interpretations of the law.

Obviously, that’s the logical extreme of the argument, but it’s not as ridiculous as it sounds. Part of the fear conservatives have about Obama putting a liberal justice on the bench derives from the fact that the Court has had a conservative majority for decades; filling the vacancy left by Scalia with a liberal justice swings the balance back to the left for the first time in a while, which could have huge implications on issues like abortion, gun rights, and religious liberty. Such political furor would become commonplace with Supreme Court elections, because every few years, the balance could shift with the election of one justice, and the most critical issues for both sides could be redefined and reinterpreted.

I highly doubt that Supreme Court justices will ever be elected by the people instead of appointed by the President, and I doubt term limits will ever be placed on justices either. Political inertia and the excruciatingly difficult process of amending the Constitution make either prospect next to impossible. Fortunately, the current system is satisfactory, and even if it’s not perfect, it’s far superior to most other alternatives.