Ted Cruz is wrong about Supreme Court reform, and so are you

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The numbers are out, and they are baffling: the majority of Americans favor term limits for Supreme Court justices.

In a Reuters/ Ipsos poll released yesterday, 66% of respondents said that they favor limiting justices' terms to 10 years, rather than the life terms that they currently serve. And 48% go as far as suggest Supreme Court justices get elected by the general public, rather than appointed by the president and approved by the Senate.

The poll comes after recent Supreme Court rulings that upheld key provisions of Obamacare and legalized same-sex marriage nationwide. Both decisions were praised by liberals and slammed by conservatives.


In the wake of those decisions, presidential hopeful Ted Cruz led the charge toward Supreme Court reform with an op-ed he wrote for National Review, in which he proposed an amendment to the Constitution that would allow the American public to vote out justices they disagreed with.

The "judicial tyrants" who reached those decisions, he argued, had "crossed from the realm of activism into the arena of oligarchy." In the proposed amendment, Cruz said that every justice should "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."

Cruz, of course, is of the Tea Party-variety of Republicans, a self-described class which supported the 10-year term in the Reuters/ Ipsos poll by an overwhelming majority. Over 80% of those associated with the Tea Party movement support the idea of limiting justices' terms to 10 years.

It's not hard to see why they would back unprecedented measures. The Supreme Court's recent decisions have placed significant limitations on the power voters have over issues like marriage and health-care exchanges, which are traditionally run by the states. In Cruz's view, this is the court abusing its power.


But there's just one thing the constitutional scholar doesn't mention: setting limitations on the power of the political majority is one of the very reasons the Supreme Court exists.


Justices are appointed—not elected. They don't owe their position to an election, nor do they have to appease voters in hopes that they don't get voted out of office. That is what allows justices to make politically unpopular decisions when they feel it is the constitutional thing to do (think Brown v. Education). It's the essence of the idea of the "independent judiciary," if you can go back to civics class with me for a second.

"[The court's] relative isolation from men and events and their commitment to the processes of reason helps free them from momentary pressures and passions and permits them to take a longer view, thereby increasing the prospects that due recognition will be given to the values contained in the Constitution," wrote judicial scholar Terrance Sandalow in the widely cited 1977 paper called "Judicial Protection of Minorities."


It's not that the minority is unable to participate in the political process that leads to the passing of unjust laws, Sandalow added. It's just that even when the minority has traditionally participated in democracy, "it has simply lost."

"A political majority cannot be trusted to respect rights that the Constitution affirms for all, majority and minority alike," he wrote. "The court's action is not in the service of democracy, but a limitation upon it."


That's what makes Cruz's suggestion that voters should be able to vote out federal judges so appalling and incendiary. It lacks regard for the rights of people who disagree with the conservative, anti-gay marriage American right.

In his op-ed, Cruz points to the fact that some states allow judicial retention elections as the basis for his argument.


One of the so-called success stories of the practice closely mirrors what Cruz says he would like to see happen at the federal level. "[I]n 2010, the voters of Iowa removed three justices who had, like the Supreme Court in Obergefell, invented a constitutional right to same-sex marriage," Cruz boasted, wishing out loud Americans could do the same to Justice Anthony Kennedy.

It's true. In 2010, three Iowa Supreme Court Justices were voted out of office after the court reached a unanimous decision that legalized same-sex marriage in that state.


“I think it will send a message across the country that the power resides with the people,” Bob Vander Plaats, a former Republican candidate for governor who led the campaign, told the New York Times after the ouster. “It’s we the people, not we the courts.”


Other constitutional scholars (clearly not Cruz) saw the moment as a direct affront to the independent judiciary. “What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office,” said Erwin Chemerinsky, dean of the University of California, Irvine, School of Law. “Something like this really does chill other judges.”

After the Supreme Court's decision that legalized same-sex marriage nationwide came out last month, former Iowa Justice David Baker, who was voted out of office, told the Associated Press that the decision "shows the importance of an independent judiciary who is committed to upholding our Constitution.”


Former Iowa Justice Michael Streit, also ousted in 2010, added: "I’m proud of what we did and I’m happy with what the U.S. Supreme Court did today.”

Cruz, it should be mentioned, is not alone in his assertion that changes need to be implemented at the Supreme Court. Former Texas Gov. Rick Perry, Kentucky Sen. Rand Paul, and Mike Huckabee, all Republican presidential hopefuls, have gone on the record saying that term limits for Supreme Court justices should be imposed.


In an ideal U.S., he seems to suggest, there would be no truly independent judiciary. All the established protections minorities now enjoy would be threatened. And his party would enjoy a broad majority.

Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.

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