When a president jabs at “unelected” justices or a national pundit hits a Supreme Court “accountable to no one,” Lyle Denniston turns to the Constitution.
The veteran Supreme Court observer does just that this week as the basis for reporting in a Huffington Post commentary on the Founders’ reasoning for an appointive federal bench with life tenure as the best route to a truly independent judiciary.
In a column called “Constitution Check,” Denniston contrasts the Founders’ thinking with recent remarks about the Supreme Court by President Obama (click here for Gavel Grab) and New York Times columnist Maureen Dowd (click here):
“Too often in American politics, a critic of something the Supreme Court has done or that it might do makes a complaint about ‘unelected judges’ overturning the work of elected legislatures. The aim, of course, is to deny legitimacy to an institution that does not have to answer to the voters. The problem with such slights of the Supreme Court is that they run directly counter to the constitutional design of the Founding Generation.”
Denniston hearkens back to the Constitutional Convention in Phladelphia and Alexander Hamilton writing in Federalist Paper #78. He discusses an idea about greater judicial accountability through judicial elections that was raised in the Progressive era, but not applied to the federal bench. Then he fast-forwards to the currently polarized era of U.S. politics when special interest groups can wield the clout to remove a state judge from the bench over a single ruling they dislike. That occurred when three Iowa Supreme Court justices were voted off the bench in 2010, over a unanimous court ruling that permitted same-sex marriage.
“I think the damage is not on judges, but that courts will come to be seen and judges will come to be seen as simply legislators with robes,” Denniston quotes former California Justice Joseph R. Grodin as remarking after the Iowa vote.
Last week, Justice at Stake Executive Director Bert Brandenburg underscored similar concerns as those highlighted by Denniston. “Americans deserve vigorous debates over the role of the courts, the decisions of courts, and who becomes a judge. But political leaders should avoid undercutting the legitimacy of a Constitutional branch of government,” Brandenburg said in a statement.
The big debate has followed on the heels of Supreme Court oral arguments last week on the constitutionality of the Obama administration’s federal health care law. Meanwhile a new Washington Post/ABC News public opinion poll indicated that when the high court rules on that case, half of the public expects to justices to base their decision primarily on “partisan political views” while 40 percent anticipate decisions developed mainly “on the basis of the law.”
In other media commentary and reports, a Huffington Post commentary by Robert Lifton was entitled, “The Supreme Court and Health Care: A Wake-Up Call to Political Reality;” Ronald L. Trowbridge had a piece in the Houston Chronicle headlined, “Checks, balances and the Supreme Court;” a McClatchy-Tribune News Service editorial asked, “How would Prof. Obama grade President Obama?” and Republican Rep. Lamar Smith of Texas wrote an essay in Politico entitled, “President Obama wrong to bully the Supreme Court.”