"Electing the Supreme Court" by Dmitry Bam

Dmitry Bam, University of Maine School of LawFollow

Abstract

There is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by the President (a) are often the President’s close associates, personal lawyers, or life-long friends, (b) have extensive experience in the executive branch, (c) have significant connections within the federal government, or some mix of the above. Some of the most influential justices in modern American history—luminaries like Justice Robert Jackson, Justice Byron White, Chief Justice Rehnquist, Chief Justice Roberts, and Justice Scalia—ascended to the Supreme Court after notable careers in the executive branch. While there have certainly been instances in American history of justices standing up to the Presidents who appointed them (and of rejecting the partisan ideology of the nominating President’s political party), this has been the rare exception rather than the rule. Most often, the President selects justices who will support his agenda and shape America’s constitutional vision to align with the President’s, and the justices follow suit. This Article examines whether the current nomination and confirmation process is truly the best method for selecting judges who are meant to act as a check on the other branches of government, and whether it is consistent with American constitutional history and theory. I conclude that it is not and argue that Supreme Court justices, like other agents of the American people, should be directly elected by the people.

Most people simply accept that the current method of selecting Supreme Court justices—nomination by the President and confirmation by the Senate—is the best approach to choosing judges. In many ways, this is understandable; after all, when it comes to federal courts, we inherited this selection method from England and have adhered to it for centuries. The Federalist Papers devote only a single sentence to the topic of initial judicial selection, essentially dismissing it as a non-issue. Moreover, lawyers, judges, and legal academics are almost universally opposed to judicial elections. Given this entrenched perspective, both in the eyes of the public and the legal profession, it is unsurprising that judicial elections are rarely, if ever, proposed in discussions about Supreme Court reform.

This Article breaks away from that conventional understanding. I argue that the current selection method is fundamentally flawed and that well-regulated judicial elections to a single, non-renewable term offer a superior approach for selecting judges to serve on a constitutional, policy-making court like the Supreme Court. Moreover, in an era defined by the growing reach of executive authority, the rise of the imperial presidency, and overarching federal power, the Court’s role as a vital check on presidential and congressional action is more essential now than ever before. In this Article, I propose a constitutional amendment to implement the direct election of Supreme Court justices and demonstrate that this proposal is not as radical as it may initially seem and that it aligns with constitutional theory, American history, and our evolving understanding of the judicial role.