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The courts are necessary appendages of government that circumvent democratic ideals in the way they are structured and how they function. In most nations, judges are appointed rather than elected, as is true for American federal justices. (Many states and municipalities in the U.S, have their judges elected in political campaigns.) Even though the Senate must confirm candidates for the federal bench after nomination by the president, once the justice takes his or her seat, he or she has attained a lifetime appointment unless some gross malfeasance results in impeachment. As the Constitution notes in Article III, “The Judges, both of the supreme and inferior courts, shall hold their Offices during good Behavior.” Conduct that results in impeachment or forced resignation is quite rare. No matter what their performances as justices have been, their positions are forever.
These unelected lifetime justices who have no outside oversight once they are on the bench, rule on the validity of the laws passed by the Congress or legislatures chosen by the voters. The power that these judges hold to approve or strike down laws is contrary to democratic principles as they are not answerable to the people for what they have done. Activist justices may also formulate new laws in the manner that they interpret legislation and the Constitution itself, again accountable to no one for their rulings. Some of these judges may sit on the bench for forty or fifty years, unfamiliar with new technology or not really understanding how society has evolved during this period. And strict constructionists may employ literal interpretations of the Constitution and past laws that are out of touch with a changed world and new mores.
Providing judges with lifetime appointments in the United States may have been a good idea when it was originally introduced, but it has outlived its usefulness with long-serving judges at times able to impede progress. Initially, the permanent designation was meant to shield judges from external political pressure so their rulings would be free of partisan bias. However, the appointments themselves have become increasingly political in nature and the judges’ rulings from the bench usually reflect their political leanings. This is evident with Supreme Court decisions in recent years such as Citizens United, the McCutcheon case, or the overturning of the Voter’s Rights Law, all accomplished in a strictly partisan fashion.
As an additional argument against lifetime appointments, life expectancy in post-Colonial times was less than fifty years of age, so the justices generally did not serve terms that lasted many decades as is now true. The first nine justices on the Supreme Court served an average of nine years, the last nine who left the bench, an average of twenty-seven years.
To instill some accountability into the court system, federal judges’ terms should be lengthy but limited, after which they would have to be reappointed by the president and reconfirmed by the Senate. This would allow examination of their rulings and work on the bench to determine whether they were fair and balanced, or with a significant political bent. The federal courts are too important to permit judges to sit for a lifetime with no accountability regarding their decisions. Consideration should also be given to increasing the size of the Supreme Court to enhance its efficiency. Greater diversity in appointments might also result in different viewpoints and insights, which might aid the court in its functioning.
This obviously could only be done by a Constitutional Amendment, an unlikely possibility given the current domination of Congress and the state legislatures by Republicans who are happy with the recent Supreme Court actions and unwilling to change the system. Perhaps with time and the realization that the Constitution doesn’t always fit the realities of the modern world, the Supreme Court will be transformed and provide more accountability.
Resurrecting Democracy
www.robertlevinebooks.com
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Political junkie, Vietnam vet, neurologist- three books on aging and dementia. Book on health care reform in 2009- Shock Therapy for the American Health Care System. Book on the need for a centrist third party- Resurrecting Democracy- A Citizen’s Call for a Centrist Third Party published in 2011. Aging Wisely, published in August 2014 by Rowman and Littlefield. Latest book- The Uninformed Voter published May 2020