Should The Supreme Court Become More ‘Democratic’? [Opinion]

Direct elections would be a mistake for Supreme Court nominees. But other reforms could make the institution more democratic.

Supreme Court Justice Brett Kavanaugh.
Chip Somodevilla / Getty Images

Direct elections would be a mistake for Supreme Court nominees. But other reforms could make the institution more democratic.

The confirmation hearings and limited-in-scope FBI investigation into Brett Kavanaugh, now a sitting justice on the Supreme Court, still bothers me. I’m apparently not alone in this, as a recent ABC News/Washington Post poll released this past week demonstrates.

That poll found that most Americans (51 percent) actually disapprove of Kavanaugh becoming a justice on the high court. Just two in five Americans think he deserves a seat on the bench.

Around the same numbers believe that the investigation into Kavanaugh’s past — his alleged sexual assaults on women from when he was a teenager and in college, and possibly beyond, according to reporting from HuffPost — deserved to be conducted in a more thorough fashion, with 50 percent saying the FBI didn’t do enough, versus 41 percent that say their inquiry was sufficient.

The numbers are demonstrative of a key point often overlooked in the debate over his appointment: Kavanaugh is the least-liked choice to the court in over 30 years of nominations made, as CNN reported.

But should this matter? Should public opinion weigh in on whether a pick to the Supreme Court is a good fit for that institution? In some ways, it already does: Senators up for re-election have to consider how their vote will look to constituents back home, and presidents are sometimes elected in part based upon who they may appoint once they get elected.

That, of course, is an indirect way in which the people have a say in how an individual is placed on the Supreme Court. But as Kavanaugh took a seat on the bench next to his esteemed peers, I couldn’t help but take note of a rotten feeling in my gut that was based out of dual emotions of despair and helplessness. Judging from my social media feed, I’m not the only one who felt that way.

So here’s the million-dollar question: How do we fix this? How do we give “we the people” more say in how the high court looks in years to come?

There are ideas we could consider, most of which would likely require a Constitutional amendment or two. That makes the case for change more difficult to consider — an amendment takes a lot of work to get passed and would require the right set of conditions to move it forward.

But even with the high threshold to repair this problem, we should still consider these proposals, and at the very least thrust them into the public marketplace of ideas. First and foremost, we should promote this basic concept that making the Supreme Court a more “democratic” institution wouldn’t necessarily be a terrible thing.

We should caution against overstepping those bounds, however, because justice under the law shouldn’t necessarily be fully democratic. A hypothetical might help: the action that a father takes in killing another man for threatening his children in online forums could be viewed by a majority of people as a “just” act — but ultimately, that father did break the law and refused to deal with the situation in a legal manner, refusing to use other means of defense for his family that were readily available to him. A democratic opinion on this issue shouldn’t change the fact that he broke the law and deserves to be punished for it.

But in another sense, some semblance of democracy must influence our judicial institutions, including who gets appointed to the Supreme Court. A limited amount of democratic influence gives the court a higher sense of legitimacy, allowing the American people to feel more secure in knowing the decisions that are rendered have been made by a judicial body they have a greater sense of trust in.

I’m not trying to propose that we elect justices to the Supreme Court — doing so would politicize the high court even more than it already is, and create less legitimacy for half the nation that voted against the justice who “won.” But there are ways in which our nation could empower those “indirect” ways that the people already have a say.

First, we should create tenure limits for sitting justices — one way to do this is by ending lifetime appointments. By doing so, the American people will have a better way of knowing when a justice is leaving their post, and how many justices the next elected president will be nominating to serve on the court. This eliminates a “guessing game” while at the same time ensures a steady stream of new perspectives (say, after a justice serves for 14 years or so) enters the court.

Second, we can create a more direct way for citizens to voice opposition to those already on the court — possibly through the use of a national recall vote. This possible reform would probably be more contentious to implement, but it deserves to be heard out, if only to come up with a different solution.

If a justice on the court was deemed untrustworthy by the people to carry out their judicial duties, the people themselves ought to have a mechanism to remove them from their position. Here’s how I’d see this working: If a quarter of a state’s voting public agrees to sign onto a recall petition for that justice, and if three-quarters of the states similarly did so within a set period of time, that should be enough to trigger a national recall election on that individual.

At that point, during the November elections of the same year, the justice’s name would be included on the ballot, with the question of whether they should continue to serve being put directly to the American people. If a majority of the nation’s voters said they didn’t deserve to remain on the court, that justice would lose their seat, and the president would have to appoint someone else to fill the vacancy.

This threat of a recall could, in itself, create a higher threshold for which justices a president should nominate in the first place. If the chief executive is going to put forth a controversial name — which, in the most recent example of Kavanaugh, was true even before allegations of sexual assault came about, according to reporting from Mother Jones — then they’re also likely to have to endure the headache of having the real possibility exist of that justice being removed at some point in the near future.

At the same time, the difficulty in getting a recall election to happen at all would allow sitting justices to rule as they typically would without the mechanism in place. Critics might allege that a recall threat for justices would dissuade them from ruling one way or another — but the reality is, it’s really hard to get a recall to happen at the state level, and under what I proposed above, it’d be even more difficult to see happen. Still, it wouldn’t be an impossible thing and could be one way we could get a little bit more democracy on the high court.

Again, a bit of indirect democracy influencing who can sit on the Supreme Court isn’t a bad thing. It allows that body to have a higher degree of legitimacy in the eyes of the American people.

To be sure, an excessive amount of democratic influence on the court wouldn’t be good. But at the same time, we should not dismiss so readily the necessity of allowing the American people to have a bit more influence on the institutions that govern over them, and that includes the Supreme Court.