The impending reversal of Roe v. Wade will demolish the revered role of the Supreme Court as simply interpreting the Constitution.
Citizens United, a classic example of creating a decision that insulates the dark money of the ruling class from public accountability and enables despotic interests to gain power, is held in contempt by many. The court’s creation of qualified immunity for cops has whitewashed the killing of Black people by white police, sanctioned extraordinary governmental misconduct and violence against a racial minority and decimated respect for the rule of law.
The confirmation hearing of Supreme Court Judge Ketanji Brown Jackson proves not only that the selection process for one of the most important jobs in our democracy is in shambles, but also that the work of the Supreme Court is inherently political. As a result of the circus atmosphere in the Senate, the public knows what lawyers have always known: the politics of judges predict their decisions. Should they have lifetime appointments with the uncontrolled power to determine social policies that impact voters without being held accountable?
Today, the Supreme Court addresses tasks never contemplated at the founding of this country. The founders were white men and members of the ruling class. They designed a system grounded in 18th century social values and technology. Their concept of equal rights in the Declaration of Independence was written for white Christians. It has never applied to all people and many segments of U.S. society still claim equality dilutes their liberty to maintain their economic, social and political advantages.
The reality is once five Supreme Court justices arrive at a decision, it gains the force of law, notwithstanding four dissents. Five votes set public policy, and the Constitution does not limit the court’s decision-making power.
Indeed, the Supreme Court has never found itself confined by the terms of the Constitution. That has been true since Judge John Marshall wrote Marbury v. Madison, establishing the power of the court to overrule acts of Congress.
When Marshall wrote, “It is emphatically the province and duty of the judicial department to say what the law is,” he was affirming the common law that when a court has to choose between two rules to decide a case, the choice is a judicial one. That’s no longer the case. Today, SCOTUS ranges far and wide on significant social and political issues without answering to the public, who trusts it less and less.
For decades the Supreme Court has enjoyed higher esteem than the other branches of government, largely because it claims to be the voice of the Constitution, a revered document. The reverence that has crowned the Supreme Court with a halo has changed and the demise of Row v. Wade will accelerate calls for public accountability.
Making public policy is inherently political and Supreme Court justices should be responsible to the electorate at the ballot box. Twenty-three states elect their state supreme courts. Others employ a retention election in which voters are asked whether an incumbent judge should remain in office for another term. If more than 50% of voters decide he or she should not be retained, they are removed.
In California, when state Supreme Court justices step down at the end of their 12-year terms, the governor nominates replacements. Newly nominated justices appear on the ballot and must obtain voter approval to replace the justices stepping down.
In both the direct and retention election system, voters are the final check of whether a state Supreme Court judge is making decisions approved by the public.
Establishing a 12- or 20-year term to ensure turnover in the U.S. Supreme Court and ballot review of justices will invigorate a critical public institution and promote public policy decisions more likely to be supported by the public. A national referendum on whether the justices voting to abolish Roe v. Wade should retain their office would be a healthy reform.
Richard Alexander is managing partner of the Alexander Law Group, LLP, a personal injury lawyer and consumer protection advocate.