MENU

Reason.com

Free Minds & Free Markets

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

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

TedCruzredstateRepublican 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.

Yes.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Fist of Etiquette||

    Something will always hold sway over supreme court justices and their opinions. (Sometimes that thing is even the Constitution.) They are political. They don't exist in a vacuum. They have set ideology governing them. We're not getting 5-4 decisions for no reason.

  • Scarecrow & WoodChipper Repair||

    The proper solution to 5-4 decisions is to treat split decisions as voiding the law in its entirety as too vague to be constitutional. Force the justices to be realistic, and force legislatures to be clear. If ordinary people are not given the benefit of the doubt when a law is vague, why should highly educated judges get to dither?

  • Robert||

    "Voiding the law in its entirety"? That's going to be awfully confusing to most of the people who take a case to court! They need their case decided. Say that 5-4 decision hinged on some small detail of some administrative decision under the authority of 1 or more statutes. It would just leave the parties to the case scratching their heads if you said, "All the statutes under which this administrator's decision are void for vagueness because we can't come to an agreement about the detail that affects you."

    Say it's a trademark dispute between A & B. What do you do, say, "We can't agree, so now nobody has a federal trademark—not just you 2, but anybody. There are no trademarks any more. Have fun."

  • Drake||

    Too late - it's already fully politicized. The last 2 decisions looked like pre-ordained verdicts - with some tortured legal logic as an afterthought to justify them.

  • John Galt||

    "Nuts"? Oh really. Exactly how does one "politicize" something that's already extremely politicized.

  • Cytotoxic||

    By making it worse.

  • Robert||

    It's humans all the way down.

  • John Galt||

    Perhaps we should just put justices up for election and dispose of congress. Not much point in two legislative branches. Especially in consideration of how quickly the executive branch is transforming into a dictatorship. At the present rate of descent it won't be much longer before there's no point in maintaining a legislative branch either.

  • Robert||

    Judges are elected in many jurisdictions of the USA. Judgeships in NY are all theoretically elected positions, although judges can wind up shuffled to other districts from the ones they're elected in.

    To me the more important thing is to have the judges serve fixed terms, & be eligible for only 1.

  • Mickey Rat||

    The legislature is there to provide political cover for the executive, Burwell stripped Congress as the legislative authority (the one that defines the law).

  • ||

    Well Obamacare would be history and pot would be legal if the judges were elected.

  • R C Dean||

    I have no opinion (yet) on Cruz's proposal, but it might be better described as "getting some electoral accountability over a judicial body that is inherently political."

    Electing judges, even to Supreme Court positions, is pretty common all across the states, so its not like we have no idea how this might work out and/or effect SCOTUS's culture, work product, etc.

    Howsabout this idea, though:

    Rather than having SCOTUS be popularly elected, lets have the states appoint the SCOTUS justices. Not sure what the mechanism might be, but it would be step back in the right direction of giving the states direct influence over what goes on in the federal government, per the original plan.

  • 0x90||

    If you have to do something, then why not institute the concept of an "unelection" -- have them be appointed, as they are, but then periodically subject them to a vote calling for their dismissal.

  • Ron Bailey||

    RCD: How about let's repeal the 17th Amendment first.

  • Bo Cara Esq.||

    Yes, what we really need are a bunch of career politicians making more important decisions for us!

  • Homple||

    What is it we have now?

  • Bo Cara Esq.||

    Taking the vote for Senators away from us and giving it to state pols would only add to that.

  • Florida Man||

    Then get rid of the legislature. Have people petition to write laws and have the population vote on each bill.

  • Bo Cara Esq.||

    I don't think that's practical for logistical reasons. I do have a hard time with people who say pols are making too many decisions for us then turning around and saying 'let's repeal the 17th Amendment, my state pols know who's best for me to choose!'

  • Lady Dalrymple||

    How's law school going, Bo? You graduate? Take the bar?

  • Bo Cara Esq.||

    This has been covered. But if you'd like to push Warty's obsessive compulsive ideas on it, by all means. It's funny to read.

  • Florida Man||

    Why is it impractical. You need 100,000 signatures to bring the bill to the general vote. If you can't get that many it's a shitty bill. Post it for review online for no less than 3 months. Have monthly votes. I bet we would get better laws.

  • Bo Cara Esq.||

    You know what, you got me there, it probably would be better.

  • ||

    Because it would result in mob rule which is supposed to be the benefit of Republic over Democracy.

    When Senators were appointed by State pols the State's interests had protection against the Feds.

    Now, not so much.

  • PM||

    I do have a hard time with people who say pols are making too many decisions for us then turning around and saying 'let's repeal the 17th Amendment, my state pols know who's best for me to choose!'

    That's because you're really fucking stupid and forgot about that entire other legislative body, I suppose.

  • R C Dean||

    Of course, taking the vote for Senators away from State legislators and giving it to us was a critical attack on the federal system that probably did much to lay the groundwork for the metastasizing Total State.

    And, naturally, the idea that an electoral system that has been thoroughly and completely stacked in favor of the two-party system by politicians is delivering to the voters exactly the kind of candidates who aren't "a bunch of career politicians" making important decisions for us.

  • IceTrey||

    That's why we also repeal the 16th amendment.

  • Cytotoxic||

    I see you don't understand the US Constitution nor have you gotten over the fact that everyone here has figured out that it's you Tulpa.

  • ant1sthenes||

    So balance it out by increasing the number of representatives several times, and have them directly, randomly selected from the electorate. They were never intended as a body to be professional or exemplary like the Senate theoretically was, they were intended to be... representative, as the name suggests, to ensure that government literally was we the people.

    It would get more minorities and women in, get different sorts of minorities that don't correspond to protected classes but are also poorly represented in Congress (e.g. introverts, decent human beings, etc.). It wouldn't eliminate the impact of gerrymandering, but it would blunt it. Both this and state appointment of senators would realize the goals of the good-faith part of the CFR crowd (cuz, no campaigns for either) without the risk of impacting freedom of speech, and for conservatives, it would basically provide a limit of a single term.

  • DRM||

    What would be the point of repeal? The state legislatures would just do things the way a majority of them did before passage of the 17th, which is the same way they currently do their job of appointing members of the Electoral College -- have the people vote.

  • Robert||

    The 17th amendment is of no import. All the states would've shortly had popular election of their US senators anyway, & no state is going to stop popularly electing them now. The only way you could get what you want would be to get a federal amendment to somehow prohibit popular election of US sens.

    Similarly the 16th amendment has no effect. It was at most a clarif'n. The only tax that's ever been imposed under it is understood as an indirect one anyway.

  • commodious spittoon||

    Epstein rejected the Cruz proposal out of hand, but suggested instead capping terms to 18 years.

  • Rt. Hon. Judge Woodrow Chipper||

    I'd much rather the decisions of the court have a length of 20 years. Gets rid of bad precedent. I'm sure it creates all sorts of other problems, but I'd bet most of the problems would expand liberty rather than government power.

  • commodious spittoon||

    I don't know why he chose 18 years, but I imagine because it's not divisible by 4.

  • commodious spittoon||

    And yes, sunset provisions on all acts of Congress. Force them to run on their past misdeeds.

  • Rt. Hon. Judge Woodrow Chipper||

    I'd be willing to let 9-0 or 8-1 verdicts stand for 80 years.

  • Raven Nation||

    I think it was Jefferson who suggested that to Madison during the ratification debates.

  • Stormy Dragon||

    It gets rid of good precedent too, meaning you can't be sure something is legal just because it was legal last time. You have to continually fight the exact same lawsuits over and over.

  • Rt. Hon. Judge Woodrow Chipper||

    5-4 verdicts aren't an example of good precedent. Maybe personally satisfying, but not good.

  • Scarecrow & WoodChipper Repair||

    Right. All split decisions should throw the law out as too vague to be constitutional. Mere mortals don't get the luxury of split decisions when the cops come to arrest you, why should judges with all their legal edumacation and experience?

  • Stormy Dragon||

    So you'd prefer a world were the Heller ruling only applied to Dick Heller and anyone else in DC who wanted to get a firearm permit would have personally sue to get it because the ruling in that case didn't create a precedent for any future cases?

  • Robert||

    How would you prevent judges from treating previous decisions as precedential?

  • Rt. Hon. Judge Woodrow Chipper||

    The Second Amendment sorta imposes term limits. Mostly the reason so many politicians want to repeal it.

    I'm not proposing murder, I'm simply stating that the honorable act of dueling has been unwisely jettisoned.

  • 0x90||

    Clearly, we need a hybrid election-duel process: whoever wins the election then has a duel with the incumbent, to decide who will hold the office for the next term. At least, this would guarantee that politicians possess some skill besides electioneering.

  • Tony||

    California has 12% of the country's population and Wyoming has 0.18%. What possible argument is there for the senate, let alone the supreme court, getting filled by giving each of these arbitrary land areas an equal vote?

  • 0x90||

    Love it or leave it.

  • commodious spittoon||

    Attempting to stem the corrosive influence of mob politics isn't enough?

  • Tony||

    Conservative mobs don't count?

  • commodious spittoon||

    Precisely.

  • Bo Cara Esq.||

    What's important is the land is equally represented Tony!

  • Rt. Hon. Judge Woodrow Chipper||

    The existence of "The United States versus a 1968 Chevrolet Camaro" and other similar court cases. Your population fetish doesn't match actual lawsuits - if property can be brought to justice, then land mass matters.

  • Bo Cara Esq.||

    The sad thing is, I've been here long enough to think this could be serious.

  • Rt. Hon. Judge Woodrow Chipper||

    The only person stupid enough to respond seriously to Tony is Tulpa.

  • Bo Cara Esq.||

    Not Tulpa psychopath.

  • Cytotoxic||

    Yes you are.

  • sarcasmic||

    Because the Senate (pre-17A) was supposed to represent the state governments, regardless of population, not the people in the states (which is what the House is for). That way the state governments would have representation in the federal government, which they now lack. So if the popularly elected House tried to compel the state governments to comply with an unfunded mandate, change the drinking age, implement Obamacare, etc, then the state governments' representatives could tell them to pound sand. It was one of those checks and balances that leftists abhor. Because there's nothing that leftists such as yourself hate more than limited government.

  • Calidissident||

    I just don't really see any reason to think it would actually be an effective check on power. The state governments willingly gave up this power by lobbying Congress to pass it, and then approving it by a 3/4ths vote. It also seems far more likely that state governments would simply lobby the feds for their own benefit rather than try to limit the power of the central government. It assumes an ongoing adversarial relationship between the federal government and the states, when I don't think it's likely that that will generally be the case.

  • PM||

    I just don't really see any reason to think it would actually be an effective check on power.

    It's possible, I suppose, that the exponential expansion of the federal government since the 17th Amendment is a mere post-hoc coincidence, but then again, maybe it's not.

  • Calidissident||

    I'm inclined to think it is. Why point to the 17th Amendment, and not the income tax, which had already been passed? Or the Federal Reserve, which was created that same year? Growth of government from the Progressive Era was well under way by the time the 17th Amendment passed.

  • Calidissident||

    Again, if it really was this great check on federal power that the states totally would have used to contain it, then why did the legislatures so enthusiastically give it away?

  • sarcasmic||

    Recall how over 50% of the states sued to repeal Obamacare. Had the Senate represented the state governments, then presumably there would have been no need to sue, since it wouldn't have passed in the first place.

  • Calidissident||

    A lot of those suits were due to Attorney Generals and/or Governors, not necessarily the legislature. Furthermore, the composition of legislatures when the suits were filed was not necessarily the same as it was when it passed. The Dems lost a lot of offices at the state and national level in 2010. In addition, this comparison suffers from the seen/unseen problem, since we don't know what shitty laws state legislatures would have tried to pass if they still elected senators.

  • sarcasmic||

    since we don't know what shitty laws state legislatures would have tried to pass if they still elected senators.

    My point was that a senate chosen by the state governments would be less likely (maybe I'm wrong) to pass bills that would put a financial burden on the state governments that they represent. Sure they'll accept federal money. I'm not asserting that it would be perfection. But I'd like to think they'd make it more difficult to pass unfunded mandates (Medicare) and blackmail (withholding of federal funds unless they pass certain legislation like the drinking age for example). Remember too that all spending bills must originate in the House. That's to allow a senate that represents the state governments to block it.

    What was a potential check on power is now just another rubber stamp.

  • Calidissident||

    That assumes the states have a problem with blackmail. I don't think they do. The few that would want to go against the grain would be at the mercy of the other states, who I really don't think would have a problem with inflicting their will. This also ignores the fact that state legislatures have to answer to the voters. If the voters want a Senator that will vote for a stronger federal government, state legislators risk losing their seats if they don't support such a Senator. Again, if this was such a vital power and check on government, why did the state legislatures so enthusiastically give up the power? You still are yet to explain that. The state legislatures were the ones that practically begged Congress to pass an amendment (and most states had already introduced direct election primaries) and they approved it by a three-fourths vote. That makes absolutely no sense if the state legislatures supposedly viewed this as a great positive tool to keep the feds in check.

  • Robert||

    The requirement that spending bills originate in the H.R. has an effect only when they're tight up against a deadline! If both houses want to pass a bill, it's easy for it to originate in the senate, be copied onto a paper w a new number in the H.R., then be sent back to the senate. Hell, for that matter, it's easy enough for a spending bill to originate in a private club in Mongolia, then go thru US house & senate.

  • sarcasmic||

    I consider the 17A to be a big-fat-hairy-deal. Don't like it one bit.

  • ||

    To prevent concentrated populations and their specific interests from ruling over sparsely populated areas and their interests.

    The problems of rural areas are often different from urban ones and one size fits all solutions don't work.

    It was designed to work just like the electoral college.

  • Red Rocks Rockin||

    Tony, like most modern progressives, despises the Constitution when it doesn't give his side a perpetual political advantage.

  • ant1sthenes||

    I don't know, why do we give France a permanent seat on the UN security council?

  • R C Dean||

    What possible argument is there for the senate, let alone the supreme court, getting filled by giving each of these arbitrary land areas an equal vote?

    Pretty sure the land areas aren't voting.

    If you want to say that its unfair that people who live in a given geographic area get to vote for representatives from that area, then I think you're going to need to explain why it isn't fair that only Americans get to vote in American elections.

    Or, if you don't want to bite that one off, why not explain why its isnt' fair that only Californians get to vote in California elections. Why can't Arizonans or Texans vote in those elections?

  • Alsø alsø wik||

    "Plan to Politicize"? When's the last time an RBG ruling, in anything other than some technical case, wasn't a stream-of-consciousness personal partisan opinion? It wouldn't surprise me if the other judges have given up even trying to reason with her.

    Not to say I agree with Cruz - any country that will elect Obama twice will happily discard an originalist like Thomas before they remove a justice that rules based on the feelz, like RBG. At this state in our decline, lifetime appointments likely protect those who rule based on the Constitution moreso than not.

  • Bo Cara Esq.||

    "When's the last time an RBG ruling, in anything other than some technical case, wasn't a stream-of-consciousness personal partisan opinion?"

    -The two justices who cast the most votes against the administration this term were Justices Ruth Bader Ginsburg and Stephen Breyer, each opposing the administration in 71 percent of the cases. "

    http://www.slate.com/articles/....._with.html

  • Tony||

    The national electorate strongly favors Democrats in the presidency and in Congress, despite the latter being gerrymandered into an unrepresentative Republican majority. This would be a bad idea for conservatives.

  • 0x90||

    Always thinking of the other guys, aren't you.

  • Tundra, well-chilled.||

    Such a giver.

  • commodious spittoon||

    2014 called, and... well, fill in the blank.

  • Tony||

    As I indicated, Democrats in both houses got millions more individual votes than Republicans, yet the latter got majorities. You can only defend such a system if you're a cynical partisan Republican.

  • Tundra, well-chilled.||

    Or, you know, an American.

  • Tony||

    So to be a patriotic American, perhaps a libertarian one, you must accept that the status quo is the best possible world.

    Guess you love Obamacare now.

  • Bo Cara Esq.||

    I think he's saying that having the Congress elected in districts and states having equal representation in the Senate (which I think are indefensible too btw) have always been part of our unique American system.

  • Tony||

    Unique is one word for it.

  • Tundra, well-chilled.||

    I'm saying that bad shit can happen faster in a mob-rules OR a fascist system. I'm fine with equal representation in the Senate.

  • Bo Cara Esq.||

    I don't know about that. The term 'junta' comes to mind (it doesn't usually represent a majority).

  • commodious spittoon||

    Didn't Chavez claim to have the will of the people after winning his rigged elections? And how is a junta any likelier provided a functioning anti-democratic senate than without?

  • Bo Cara Esq.||

    My point is that historically some, well most, really bad regimes have not been friendly to democracy. There's things that should't be open to democratic votes, but in general that's a better rule than minority rule.

  • commodious spittoon||

    Better still a process that moves slowly on either, if at all, hence "unique" relics like our senate.

  • ||

    Having a bunch of free things voters , "keep Obama in President , ya know", voting on a referendum to make Obama President for life would be too groovy.

  • Tundra, well-chilled.||

    Ok fine. Mob-rules, fascist, dictatorship, monarchy, etc. Those are all bad.

    I'll still take our imperfectly implemented and impotently defended system every time.

  • ||

    Our system once was to have the Senate appointed by each individual state vs. popular election.

    It tended to help keep voters from voting themselves money from the Government.

  • commodious spittoon||

    I'll defend any system that withholds political power from the electorate. I'd be happy to give universal, unqualified representation if the the godhead we quadrennially put into office were purely ornamental or if Democrats weren't perennial heads of the urban FSB.

  • Bo Cara Esq.||

    "I'll defend any system that withholds political power from the electorate."

    So you think Cruz's plan is a really bad one then I guess.

  • commodious spittoon||

    Just the regular sort of bad, really. The nine are already overruled by popular opinion.

  • Calidissident||

    FSB?

  • Mr. Paulbotto||

    Free Shit Brigade?

  • Calidissident||

    Tony, what the hell are you talking about? Republicans won a majority of votes in both the House and Senate elections in 2014.

    http://tinyurl.com/pbcqhx6
    http://tinyurl.com/pecl44x

  • MJGreen - Docile Citizen||

    SHUT UP!!

    It was true in 2012... or 2010... or some time in the past, so it was true of 2014 too. Democrats get more votes, Rethuglicans get the seats through gerrymandering. IT IS KNOWN

  • Red Rocks Rockin||

    Fuckin LOL at your special pleading here.

  • Rt. Hon. Judge Woodrow Chipper||

    proposes curing what he considers this court’s political behavior by turning the court into a third political branch.

    I doubt Ted Cruz gives a flying fuck about the court's behavior. He's just seizing the moment to see how many idiots would support him for him for thinking of this idea, an idea he has ZERO plans of implementing if elected.

  • Bo Cara Esq.||

    Cruz has been down in the polls. This is his 'notice me' attempt to the SoCons who've left him for more attractive suitors.

  • Real American||

    if these justices are going to act like politicians, they should be treated like politicians.

  • Rt. Hon. Judge Woodrow Chipper||

    Oh great. They'll just sell their decisions to the highest lobbier then.

  • EMD||

    Slightly OT: Woman gets out of speeding ticket due to missing comma.

    http://mashable.com/2015/07/02.....-main-link

  • EMD||

    Compare to the recent Obamacare ruling.

  • Tundra, well-chilled.||

    Was it Nicole?

  • Homple||

    How Will or Reason can fail to notice that the court is already heavily politicized is beyond my understanding. Already back in the starched collar days, Finley Peter Dunne had Mr. Dooley telling Mr. Hennessy that the Supreme Court follows the election returns.

    Cruz at least will talk about the problem.

  • Bo Cara Esq.||

    "the court is already heavily politicized"

    While the executive branch historically wins 60 to70 percent of its cases in the high court, this year the administration won only 38 percent. The court ruled against the administration in 13 of the 21 cases in which the federal government was a party, including Monday’s important decision curtailing the Environmental Protection Agency’s authority to regulate pollution from power plants...he two justices who cast the most votes against the administration this term were Justices Ruth Bader Ginsburg and Stephen Breyer, each opposing the administration in 71 percent of the cases. Justice Sonia Sotomayor isn’t far behind, voting against the administration 67 percent of the time. Who voted the most with the administration? Justices Clarence Thomas and Anthony Kennedy"

    http://www.slate.com/articles/....._with.html

  • ||

    That's because this administration threw so much non constitutional shit up against the wall that some of it had to stick. Not because the racist court is unfair to poor ole Barak.

  • Bo Cara Esq.||

    Our Founders already gave us answers to these kinds of things: if you don't like a SCOTUS decision then 1. Amendment the Constitution 2. elect people who will nominate justices who will overturn the precedent 3. hold a Convention or 4. impeach a justice or two. The Progressives have successfully done the first two in our history more than a couple of times. This isn't rocket science.

  • commodious spittoon||

    In fairness to Cruz, his proposal is a constitutional amendment.

  • Bo Cara Esq.||

    I'd say that makes it look more stupid (if you had the support to get an amendment through why not use it to correct the decision(s) you're upset about, we already have the tools).

  • commodious spittoon||

    Because we already subordinate law to the SCOTUS, which is beginning to look like an extra-legislative body sympathetic to Democrats, and passing a single "fix" to that problem may resolve many more problems down the road. Not to suggest it's a terrific idea, but I imagine that would be his rationale.

  • Bo Cara Esq.||

    "which is beginning to look like an extra-legislative body sympathetic to Democrats"

    Because of Burwell? Don't be so shortsighted. In the past few years the Court has had many decisions upsetting the Democrats, and the upcoming one looks like more of that. They got gay marriage (most libertarians rather than right wing lurking commenters at libertarian sites actually liked that result) and Burwell this year. That's hardly a good foundation for all this butt hurt.

  • commodious spittoon||

    Anything that predicated a decision on the tremendous nature of "billions of dollars in subsidies", and then proceeded to ignore utterly the text of the statute while purporting to second-guess Congress? And thereby set a precedent for simply rewriting laws based on popular appeal (or whatever the justices happened to be reading that morning)?

  • Bo Cara Esq.||

    Come on, there's no one that was convinced by that argument that wasn't adamantly opposed to the law. It was just not nearly as airtight as everyone seems to need it to be. There were other parts in the bill that made that section being taken so literally suspect. I say this as someone who thinks it's the worst thing the federal government has done since the second invasion of Iraq (and I think it's worse than that).

  • PM||

    Come on, there's no one that was convinced by that argument that wasn't adamantly opposed to the law.

    No kidding. Like any serious person really thinks that the actual words in a law mean what they say as written without taking into context the intentions and good feelings of 535 legislators. Sounds like a bunch of goddamn SOCONZ!!!!!!!!! to me.

  • commodious spittoon||

    And even if we were to take the majority at their word, they might have (as I understand it, which is to say, poorly) arrived at such a decision through the longstanding Chevron convention. Instead we get a mushmouthed paean to judicial activism courtesy of the fair-weather conservative, who elects to remove the possibility of clarifying a clearly unambiguous ambiguity via Congress and also to preclude letting a future executive touch the matter. And somehow we're meant to have warm fuzzies in our guts about the dubiously objective supreme court, because So Say We All.

  • ||

    Because , ' as a wise Latina I'm able to make better decisions" bullshit.

  • ahzzh||

    This makes perfect sense as political theater, he may not even believe it himself. Like old faithful Cruz has to say something wild every now and again to rile up the radical base who love to sling mud at 'those damn activist judges that are ruining this country'. Hes not running for president, hes running to cultivate political celebrity which pays well on the radical right side.

  • Bo Cara Esq.||

    There is far too much 'butt hurt' going on here. The only really terrible result SCOTUS gave libertarians this session that comes to mind is Burwell and the libertarian legal scholars who brought that case said early on they thought it was worth a try but likely a longshot. For all those suffering under Obama's nationalization of health care I'd have celebrated a win, but it really would have been a very petty way to have that victory. At the least, it hangs that unpopular program around the Democrat's neck longer.

  • Mr. Paulbotto||

    Just long enough for them to get VA for all aka single-payer...

  • commodious spittoon||

    But aside from twice over giving judicial sanctification to nationalizing the largest single component of the American economy, Bo, how did you like this judicial session?

  • Notorious G.K.C.||

    Trying to protect the Supreme Court from politicization is like trying to protect Belle Knox's virginity.

  • IceTrey||

    A better 28th amendment:

    Article 1
    No person may initiate force, threats of force, or fraud against any other person's self or property.

    Article 2
    Force may be used against those who violate Article 1.

    Article 3
    No exceptions shall exist for Articles 1 and 2.

  • sarcasmic||

    I like the Boorz Amendment. (Neal Boorts is a libertarian leaning talk show host)

    I believe the Constitution should be amended with a clause which states that neither the federal nor any state government shall make any activity that does not violate, through force or fraud, a persons right to life, liberty or property, a crime.
  • Bo Cara Esq.||

    What there should be is strict scrutiny on every exercise of government power. Why should government be allowed to coerce unless it can at the least show a compelling interest and narrowly tailored means? Anything less is to not place much value on any liberty that might (likely) be steamrolled by such exercise of power.

  • sarcasmic||

    They will just water down "compelling interest" into meaninglessness. Oh, wait. They already did.

  • Bo Cara Esq.||

    Where that's the long accepted test-like in First Amendment jurisprudence-they've actually performed it quite faithfully. It should just be written down that that is the test for any use of government power.

  • R C Dean||

    Where that's the long accepted test-like in First Amendment jurisprudence-they've actually performed it quite faithfully.

    Bullshit. They've carved out "commercial speech" for regulation with no textual basis. They've done the same with political speech under the tissue-thing pretext of regulating campaign finance.

  • commodious spittoon||

    But what about exceptions to #3, college? NOT SO CLEVER NOW, ARE YA.

  • Ken Shultz||

    It wouldn't just politicize the Supreme Court either. It would effectively politicize the appeals courts whose decisions they consider, too.

    Leftists should think of it this way: If Supreme Court justices were popularly elected by likely voters, wouldn't they have been less likely to support gay marriage?

    If government has any legitimate purpose at all, it is to protect our rights, and our rights should not be subject to a popularity contest. We fought a Civil War over that question in the form of popular sovereignty.

    The civil rights movement was all about doing what was right--regardless of what was popular. When California held a referendum on gay marriage--gay marriage lost. They got gay marriage anyway probably because the Court doesn't care about popularity.

    Imagine what the attack ads on Supreme Court justices would look like. Imagine what it would look like if Supreme Court justices had to spend half their time doing fundraising.

    Stupid idea.

  • sarcasmic||

    Leftists should think of it this way: If Supreme Court justices were popularly elected by likely voters, wouldn't they have been less likely to support gay marriage?

    Leftists feel that The Will Of The People should always triumph, except when they disagree.

  • Notorious G.K.C.||

    "They got gay marriage anyway probably because the Court doesn't care about popularity."

    My strong suspicion is that Justice Kennedy was thinking primarily of his popularity, or at least his Place in History and (more immediately) his desire not to get snubbed at legal conferences.

  • ||

    And cocktail parties.

    Don't forget cocktail parties.

  • Ken Shultz||

    "My strong suspicion is that Justice Kennedy was thinking primarily of his popularity"

    If you're saying that's a bad thing and electing Supreme Court justices would make that much worse, then I definitely agree with you.

  • R C Dean||

    But, see, right now the Justices are concerned about their popularity with a very narrow and unrepresentative slice of America - the ruling/political class, the DemOp Media, and the wealthy liberal enclave tastemakers.

    Might be better if they spared a thought for the other 95% of us.

  • Almanian - Wood Chipper-ish||

    Thanks to Choney and botox for retarding this thread for everyone. Moving on....

  • Bo Cara Esq.||

    Must. Have. Unanimous. GOP-Friendly Comments.

  • ||

    Lonely just before a holiday weekend, as usual, Tulpy-Poo? No one wants to spend any time with you? I'd say that that was sad, Tulpy-Poo, but it's just funny.

    Now deny that it's you! That never gets old!

  • Cytotoxic||

    *Retardation intensifies*

  • ||

    I laugh heartily when law students and those who claim recent graduation from said schools disagree with Ted Cruz over legal issues.

    Ted fucking Cruz who leftist Alan Dershowitz said was the most brilliant law student he has ever had.

    http://www.whitehousedossier.c.....brilliant/

    http://enduringsense.com/2014/.....brilliant/

    And Tony before you attack the sources do you think your news sources like salon and gawker are going to reprint Alan's comments about Cruz ?

  • Cytotoxic||

    A lot of dumb comments here about the fact that the court is already politicized. Well yeah but it can WORSE you know. The administration has lost a large number of cases.

  • sarcasmic||

    The administration has lost a large number of cases.

    Yeah. They do throw us a bone once in a while for appearances sake.

  • MJGreen - Docile Citizen||

    If I recall correctly, the Obama administration has an unprecedented number of 9-0 failures at the SC.

  • commodious spittoon||

    I don't really care that the justices can run up the score on easy, inconsequential cases if they're going to fumble the important cases that require exercising a modicum of restraint. And I do mean restraint, not Sheldon's activism masquerading as restraint.

  • ||

    If you throw enough unconstitutional cases against the constitution then you should expect to have a high number of them shut down.

  • 0x90||

    OK, now having actually read the article, it appears that the proposal itself is dismissed without actually being considered at all:

    "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."

    This is characterized by Mr. Bailey as being "nuts, to give it a technical term," an assertion backed only up by a quote from The Federalist, which itself, while rightly arguing that permanent appointment may serve to insulate the judiciary from the corrupting influence of the other branches, speaks nothing to the question at hand, i.e. whether it need be insulated from judgement of itself, by the people.

    Mr. Bailey then follows up by writing that "In other words, life tenure of judges protects them (somewhat) from the temptations, enthusiasms, and corruptions of electoral politics," neglecting the fact that it is one thing to run against an opponent, and quite another to run solely against your own record.

    He then quotes Mr. Will, who himself similarly sidesteps the actual question.

  • R C Dean||

    Yeah, once you clear the spittle flecks off the inside of your computer screen from all the totally uninformed ranting, its actually a pretty good idea.

    They go on the ballot strictly to see if they get to keep their jobs. Period.

    What exactly is wrong with that? Especially since they still get appointed by the President, with a clown show at the Senate before they actually don the robe.

  • Jonathan Goff||

    I think that knee-jerk reactions like this, which you often see whenever either party sees a Supreme Court decisions they don't like, are rarely productive. But I did have an interesting thought: If you're concerned at the dangers of leaving a Supreme Court Justice in for life, but at the same time don't want them campaigning, couldn't you just give them a fixed term, and only allow them to serve for one term? Make it longish to get some of the benefits of life tenure (say 10-12 years), but short enough that you both encourage turnover, and prevent justices from waiting to retire until a President of their political persuasion can replace them. The one big danger though is that if the term is short enough, they'll still be working-age when they get out, so you get revolving door concerns.

    Anyway, just some thoughts if you think lifetime tenure for Supreme Court Justices isn't a good idea (I'm not sure where I actually stand on that issue), but you also don't think that adding elections to the Supreme Court is a good idea either (Ronald Bailey has me sold on that being a bad idea).

    ~Jon

  • Robert||

    I (& I'm sure many other people) have exactly the same idea.

    Here's another, if you want to avoid the revolving door: Keep them as judges for life, but have all the federal judges rotate thru a term in the appeals & supreme court. Or at least have all the appeals court judges rotate thru the supreme.

  • MJGreen - Docile Citizen||

    Please, not another goddamn election. I couldn't tolerate Clarence Thomas attack ads.

  • Seamus||

    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.

    That ship sailed long ago.

  • Notorious G.K.C.||

    My preference would be that, in any area where federal courts decide to become policymakers rather than judges, Congress should take away their jurisdiction and award jurisdiction to state courts, instead.

    If judges are to be policymakers, they should be elected like other policymakers. Although a constitutional amendment would be needed to make U.S. Supreme Court justices elected, a mere statute could hand over large areas of policy to state judges, who will then be accountable to voters if their policy decisions are wrong.

    Also, a bad decision by state judges directly affects only that state, while a bad decision by the federal Supreme Court afflicts the whole country.

  • 0x90||

    But... but... EXTERNALITIES!!!11!!1!!11

    A bad decision by a state judge still affects people outside that state, which is why we should get rid of all these archaic national governments and install one supreme ruler/judge for the entire world.

  • ||

    I respect Ted Cruz as a brilliant legal mind even though I'm not smart enough to know what that means.

    I respect him like that because far lefty lawyer Alan Dershowitz who was his law professor said he was the most brilliant student he ever taught.

    However I am afraid that Cruz has existed too long in the world of educated people and forgets there are too many Obamaphone voters to allow them to vote for SCOTUS.

  • ||

    There are a few ideas of Ted's I like but I find myself absolutely loathing this Mr. Cruz - this guy is the definition of Pander Bear.

  • steven-1||

    This article is bullshit to begin with, SCOTUS is already politicized, 4 of 5 of the judges are far left socialists. They think they can just force the fifty states to legalize gay marriage. SCOTUS cannot write laws. They have absolutely no business nor authority to influence marriage. The majority of voters don't support gay marriage. I live in Nevada and we voted against it three damn times in a row and those damn judges overruled the voters. This is a middle finger to our faces.

    These are the same effing judges who just a few years ago denied gay marriage, now they suddenly shove this crap down peoples throats.

    Weather you support gay marriage or not, marriage is strictly an issue for each individual state to decide and it is suppose to be voted for, not something to be imposed or forced. SCOTUS has no right to force the 50 states to follow their ruling. It's completely unconstitutional and illegal.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online