Ted Cruz

Ted Cruz's Really Dumb Plan to Politicize the Supreme Court

This would turn the court into a third political branch, notes George Will.



Republican presidential hopeful and former Supreme Court clerk, Sen. Ted Cruz (R-Tex.) is proposing an amendment to the Constitution that would have the justices of the U.S. Supreme Court stand for elections every 8 years or so. This is nuts, to give it a technical term. In its description of how the federal judiciary should work under the new Constitution, Federalist 78 noted that the judiiciary is….

…in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

In other words, life tenure of judges protects them (somewhat) from the temptations, enthusiasms, and corruptions of electoral politics. As Washington Post columnist George Will points out today, Cruz is just another in a long line of politicians who want to rein in the Supreme Court when its decisions annoy them (ObamaCare & Gay marriage). From Will:

Ted Cruz also endorses "judicial retention elections":

"Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court."

Cruz's idea is congruent with the 1912 proposal of another rambunctious Ted, former president Theodore Roosevelt. Running as a full-throated Progressive (against another progressive, Democrat Woodrow Wilson, and the conservative Republican president and future chief justice William Howard Taft), TR advocated not just the recall of judges but also "the review by the people" of "certain" judicial decisions. TR embraced the core progressive belief that the ideal of limited government and hence the reality of the separation of powers are anachronisms.

It is, therefore, especially disheartening that Cruz, who clerked for Chief Justice William Rehnquist and who is better equipped by education and experience to think clearly about courts, proposes curing what he considers this court's political behavior by turning the court into a third political branch. Imagine campaigns conducted by justices. What would remain of the court's prestige and hence its power to stand athwart rampant executives and overbearing congressional majorities? Sixteen months before the election, some candidates are becoming too unhinged to be plausible as conservative presidents.