Judicial Retention Elections for Supreme Court Justices



A good idea from Senator Ted Cruz (R.Tx.):

Yet we are a people who believe, in the words of our Declaration of Independence that “when a long train of abuses and usurpations . . . evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.” In California, the people said enough is enough in 1986, and removed from office three activist justices who had repeatedly contorted the state constitution to effectively outlaw capital punishment, no matter how savage the crime. The people of Nebraska likewise removed a justice who had twice disfigured that state’s constitution to overturn the people’s decision to subject state legislators to term limits. And in 2010, the voters of Iowa removed three justices who had, like the Supreme Court in Obergefell, invented a constitutional right to same-sex marriage.
Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic 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.

Go here to National Review Online to read the rest.  Obviously current checks and balances do not prevent the Supreme Court from acting like a Council of Platonic Guardians instead of a Court.  I would darely  love to see the results when Justice Anthony “Sweet Mystery of Life” Kennedy would come before the voters.  This proposal would be deadly for Justices who are appointed as avatars of Judicial Restraint and “grow” in office, since they would face abandonment at the polls by the Republican party to which they owed their appointment.  Something to consider when the Constitutional Convention convenes, and I increasingly believe that I will live to see such a Convention called by the States.



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  1. I ought to be on my way to Mass now but the only car we have won’t start. Fortunately there is an Enterprise location open nearby on Sunday morning. So, those who bash free market economies can stick it in their ears.

    Lifetime appointments to the Supreme Court have become a fatal flaw of the United States Government. The Founding Fathers desired an independent judiciary, but we don’t have one now and we have not had one for decades, if ever. There ought to be the means available to the American public to remove Supreme Court judges just as there is the means to remove the President and the members of Congress.

    Abortion, busing and homosexual marriage are not enshrined in the Constitution and just because some judges decided they are does not make it so.

  2. No use to whine. The degradation of the US began with the women’s vote. Without it we would not have no fault divorce, abortion, huge welfare expenses, homosexual marriage, destruction of the family, two terms of Clinton and two terms of Obama. The women’s vote has negated the male in the body politic and this emasculation has reverberated catastrophically all through our society and will not end. I say this as a man who loves a woman and has been faithfully married for forty years. But think what happens when you pervert the natural order of things. Dads are not Dads anymore – just mules. Little wonder that people speculate about a ‘fear’ of commitment. It is not just our Chuirch that has been feminized.

  3. Shawn Marshall- On what principle would you separate political rights such as voting between the genders? What rights are gender specific and what rights aren’t?

  4. In theory I suppose judicial retention is a good idea. In practice, not so sure. What makes you think a majority of our fellow citizens would vote to throw a Kennedy or Ginsburg out (the same who kept Obama in)? Maybe the fear of rejection alone would keep these delicate flowers in line?

  5. Fear of rejection would do a lot. I think that Kennedy would quickly find out what turncoats usually find out: they have no real friends. Without the support of a party, I think a retention campaign on a nation-wide scale would be impossible for any justice. The argument against this proposal is that it interjects politics into the Supreme Court. Well, if Justices are going to base their rulings on their policy preferences rather than the law, then they need to go to the voters just like everyone else who wishes to see what he favors enacted into law.

  6. On 6 September 1789, Thomas Jefferson wrote to James Madison, “The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to thirty-four years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form: The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.”

  7. Without it we would not have no fault divorce, abortion, huge welfare expenses, homosexual marriage, destruction of the family, two terms of Clinton and two terms of Obama.
    Uh, Shawn, women’s suffrage was instituted generally in 1920 and in select locales as early as 1869. Attributing the gutting of statutory requirements after 1966 to women’s suffrage incorporates an inventive sense of cause and effect, as does the notion that misfeasance in the administration of divorce law by (largely male) judges is attributable to the (female) voting public. All but four attempts to liberalize abortion law in the United States after 1966 failed. The regime in abortion law was instituted by judges – all of them male. The ‘huge welfare expenses’ are primarily to provide economic support to the elderly and disabled, who count among them many men and have as many sons as daughters. Programs targeted at late adolescents with bastard children have seen a rapid decline in their census in recent decades, something not true of Social Security.
    There is certainly a rancid crew of (female) academics and journalists and lawyers who are fanatic on these questions. That has nothing to do with my aunt casting a ballot for Mayor of Peekskill.

  8. While we’re at it, Shawn, I think the Mississippi black codes were a pretty degrading piece of legislation. I do not recall women had the vote in Biloxi in 1866.

  9. I also like the idea. One other option would be to subject SCOTUS justices to reconfirmation every few years.

  10. All who defend the “Slouching to Gomorrah” of our nation are free to propose their own analysis. Regretfully, the emotional responses are trite and ill considered. The destruction of our moral bases and the family will continue apace. God made men and women different and He made family. The emasculation of men is not God’s plan.

  11. Also regard the solid perversity of all three female members of the Supreme Court – there is no destructive social policy they would not enforce through judiciary activism. And do not forget the tragic disappointment that ‘conservative’ Sandra Day O’Connor was.

  12. Shawn- Fine, let’s agree that women’s suffrage has been an unmitigated, absolute disaster. By what principle would you propose isolating gender specific political rights?

  13. Shawn Marshall wrote, “God made men and women different”

    But also the same, or we would be speaking of two species. St Augustine, as always, is very good on this: “Some people have suggested that it was now (Gen 1:27) that the human mind [interiorem] was made, while the human body came later, when scripture says, ‘And God fashioned man from the slime of the earth’ (Gen 2:7); so that where it says ‘he made’ (1:26), it refers to the spirit, while ‘he fashioned’ (2:7) refers to the body. But they fail to take into account that male and female could only be made with respect to the body.”
    He explains this further, when he says, “still the woman too, who is female in the body, she too is being renewed in the spirit of her mind, where there is neither male nor female, to the recognition of God according to the image of him who created her. (Rom 12:2, Eph 4:23, Col 3:10, Gal 3:28)”
    Both as a Christian and a Platonist, St Augustine would have rejected the notion of a “female mind” as not so much false as meaningless.

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