A central premise in administrative law is that federal judges lack the democratic legitimacy of executive branch officials. As Justice Scalia put it in City of Arlington v. FCC, “unelected . . . federal judges” are “even less politically accountable” than “unelected federal bureaucrats.” A similar sentiment suffuses Justice Stevens’s opinion for the court in the landmark case Chevron U.S.A. v. Natural Resources Defense Council. And, of course, the relative democratic legitimacy of the federal judiciary (or, more accurately, the lack thereof) underlies the “most fundamental issue in American constitutional law”: the “countermajoritarian difficulty.” That phrase, frequently attributed toAlexander Bickel, describes the problem of unelected judges overriding the will of elected legislatures.
But what if this central premise of constitutional and administrative law were overturned? What if Supreme Court justices (or, at least, one such justice) were selected via national referendum? Would (and should) the countermajoritarian difficulty impose less of a constraint on that justice? Would the “democratic legitimacy” rationale for deference to the political branches thus lose some of its force?
By now many if not most readers will see where I am headed. Senator McConnell’s pledge to block any Obama nominee to fill the Supreme Court vacancy sets up a 2016 presidential election in which the next justice will be on the ballot. Not literally, of course: voters still will be choosing between Trump/Cruz/Rubio and Clinton/Sanders (and Bloomberg?). But it is quite likely that by November the candidates will have given us a very good sense of whom they will nominate if elected. Indeed, Donald Trump has already mentioned Diane Sykes of the Seventh Circuit and William Pryor of the Eleventh, and Ted Cruz continues to bring up his old boss and former Fourth Circuit judge J. Michael Luttig (though perhaps he would now nominate someone younger than the 61 year-old Luttig). Marco Rubio and the leading Democratic candidates have spoken with less specificity, although Rubio has promised to nominate an originalist and both Clinton and Sanders say they would name a justice who would overrule Citizens United.
To be sure, voters often have a rough sense as to how the outcome of a presidential election will affect the next Supreme Court nomination. And an election in the shadow of a Supreme Court vacancy would not be unprecedented. Chief Justice Earl Warren’s impending retirement loomed over the election of 1968. A more direct analogy is 1956: Weeks before the election, President Eisenhower named William Brennan to the court as a recess appointee, with the implication that he would make Brennan’s appointment permanent if the Republican ticket prevailed in November. In that respect, the 1956 election was something of a referendum on Brennan. But only something of a referendum: the ideological gap between Eisenhower and Democratic challenger Adlai Stevenson was much narrower than the chasm between the leading Republicans and Democrats (and Brennan, at least at the time, seemed to be a centrist choice). These are very different times.
One might respond that even if the next justice is effectively elected this November, the next justice will not be directly elected. Neither, though, is the president—and neither are the executive branch officials to whom judges must defer under Chevron. One might also distinguish indirectly elected presidents from indirectly elected justices on the ground that the justice need not run for reelection. But the same is true for second-term presidents—and, moreover, many of the executive branch officials to whom judges must defer under Chevron are commissioners of independent agencies who enjoy tenure protections. All in all, a justice chosen through indirect referendum still may face a democratic deficit, but it would be a much narrower deficit than that faced by justices in the past.
These observations raise both positive and normative questions. As for the former: Would a justice elevated after the November 2016 election feel less bound by the countermajoritarian difficulty than his or her colleagues? To the extent that the Brennan case is probative, some might say it suggests an answer in the affirmative (with the caveat that n = 1). And over the long run, the majoritarian/countermajoritarian distinction may make little sense: “Except for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions,” political scientist Robert Dahl wrote one year after the Brennan appointment, “the Supreme Court is inevitably a part of the dominant national alliance.” In the short term, much more may depend on the ideology and personality of the next justice than the circumstances of his or her nomination. But at the very least, the indirect election of a Supreme Court justice may have an effect on the other justices’ rhetoric. Consider Justice Scalia’s line in his dissent from the court’s marriage equality ruling this past June: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” It has less of a ring to it if the phrase “nine unelected lawyers” is replaced by “eight unelected lawyers and an indirectly elected one.”
On the normative side, an emerging academic literature—building off the work of Steven Croley—grapples with the “majoritarian difficulty” at the state level, where the vast majority of judges are indeed elected. Discussions of the majoritarian difficulty remind us why we might not want judgeships to be put up to a vote. For one, elected judges may be less sensitive to the rights of political minorities. So too, the injection of politics into the judicial process may have a destabilizing effect on the rule of law. It is perhaps fitting that the most vocal opponent of judicial elections, Senior Associate Justice Sandra Day O’Connor (herself a former elected state judge), is now calling for the vacancy to be filled before the November election.
There is much more to say on the normative side than I can possibly bite off and chew here. But I’ll end with this: In thinking about whether the Senate should act on President Obama’s next nominee, one factor worth considering is whether we really want a justice chosen by indirect referendum. On the one hand, the countermajoritarian difficulty might be less of a difficulty if the next justice enjoys the implicit approval of an electoral majority (perhaps a plurality if a third-party candidate enters the race). On the other hand, facing up to the majoritarian difficulty may leave us longing for its countermajoritarian cousin.