Analysis: Supreme Court Retention Elections Would Be Costly

U.S. Sen. Ted Cruz, campaigning for president in Iowa after the U.S. Supreme Court raised his blood pressure with its gay marriage and Obamacare rulings, suggested a way to kick the bums out: “Retention elections will give the people a constitutional remedy to the problem of judicial activism, and the means to throwing off judicial tyrants.”

This comes from a guy who started his legal career as a clerk to the late Chief Justice William Rehnquist.

Throwing out the judges is not a new idea. One reason they get lifetime appointments is to protect them from the vicissitudes of day-to-day politics and public opinion. It’s the ultimate “shut up and eat your vegetables” position: terrific when you agree with a particular court ruling, terrible when you don’t. Either way, you must eat your veggies, unless, as Cruz suggests, we could send the judges home.

But think it through. If the judges are afraid of public opinion, they might also fear making decisions that, while correct, could inflame the voters.

State judges already know something about this. In Texas, where the state Supreme Court’s nine judges are elected, some candidates (and elected judges) complain about appearing under political party banners that undermine the appearance of impartiality, about the conflicts that arise when lawyers and litigants give to their campaigns, and about debating issues during campaigns that might come before their courts.

Elections for places on the state’s highest civil court are expensive. Those judges regularly hear cases involving businesses and others with lots of money riding on rulings. There is a reason that so much of the campaign cash comes from people with interests before the courts.

It’s easy to make the case that love of good government is not what opens those checkbooks: The nine judges on the Texas Court of Criminal Appeals, the state’s high court for criminal cases, rarely scrape up as much cash as state House candidates even when their races are contested.

It’s enough to make honest Texas judges hang their heads. Their regular pleas to the state Legislature for campaign reforms are regularly ignored.

Court rulings can easily stir up political opponents. Every judge in the country has heard of the 2010 retention election that removed three justices from Iowa’s Supreme Court. After the court’s unanimous decision to legalize gay marriage there, opponents formed Iowans for Freedom and ran the judges off.

Cruz’s suggestion followed Friday’s 5-4 U.S. Supreme Court decision on gay marriage and the previous day’s 6-3 decision on subsidies under the Affordable Care Act.

It’s a simple piece of politics. Cruz’s voters are mad about the rulings, and he’s offering them a way to punch back.

But money and conflicts might be even harder to avoid in nationwide elections for Supreme Court justices, even as Cruz has suggested. As in Iowa and some other states, judges would still be appointed, but voters would periodically decide whether to keep them.

Given what the Supreme Court has said about judicial elections and campaign finance, those campaigns could be remarkably lively — and expensive.

Traditionally, judges limited what they said during their campaigns. The idea was that taking positions on issues would taint their rulings later, and their campaigns were focused on comparing résumés and reputations or, from time to time, ethics.

That has gone by the wayside. They still avoid pre-judging cases, but they talk about issues, and the courts have said they can’t be barred from doing so.

Judges can be barred from raising their own campaign funds — that’s from a Supreme Court ruling issued this year. But their campaigns and their supporters can raise money, and high-dollar judicial races have become the norm. A race for a spot on the Wisconsin Supreme Court this year reportedly cost $5.7 million. Justice at Stake, a nonpartisan research group, estimates $56.4 million was spent on judicial races in the 2011-12 election cycle.

It’s impossible to estimate how much money opponents might raise to discipline a federal judge, especially one of the nine members of the U.S. Supreme Court. Look at what people and corporations spend on presidential races — the only 50-state elections we have.

Think about how the races would work. The judges, of course, would have campaigns to defend themselves. But they wouldn’t be running against opposing candidates. Instead, like those three judges in Iowa, they’d be facing some sort of organization formed for the express purpose of sacking them.

Judges ignore public opinion every day. It's why they're there — to tell when to do the right thing instead of the comfortable thing.

Cruz’s proposal might even bring right-wingers and left-wingers together. It’s not like the courts only decide one case every year. There are lots of reasons to love the results, and to deplore them.