Beyond public opinion, Supreme Court lists can only increase the temptation for lower court judges to audition for inclusion through unnecessary opinions pleasing to their party’s base. Even if a judge’s actual vote in a case isn’t affected, written opinions reverberate through the law, influencing other judges’ decisions, lawyers’ arguments and cases by advocacy groups. And even if actual nomination is a long shot, simply appearing on such a list adds luster to reputation and balms the ego.
Not long ago, for example, a judge issued a separate opinion concurring with his own more limited and technical opinion for the court. That is, he issued an entirely superfluous statement on a hot-button issue agreeing with himself. While we can’t know his motives for this unusual move — he may simply have wanted to influence developing law — it might not be a coincidence that he also made President Trump’s new list.
Finally, the sense that voters are electing justices could gradually change the way the justices see their role, and therefore how they do their jobs. Whenever a majority invalidates a law, dissenters and other critics denounce illegitimate judicial lawmaking by “unelected judges.” Ted Cruz — also on President Trump’s new list — condemned Bostock as the product of “six unelected and unaccountable judges” acting as “legislators.” Ironically, no justice has ever been more elected than Mr. Gorsuch, and Mr. Cruz helped do the electing when his party kept the seat vacant for a year.
There is a line, however blurry sometimes, between judging and legislating. Eventually, though, nominee lists may corrode that idea. For now, judicial independence lives on. Moreover, federal judges have life tenure, unlike elected state justices, which further ensures freedom of action.
But if Supreme Court justices understandably come to see a seat as just another elected office, how long before they act like other elected officials — decision makers armed with popular mandates supplied by loyal constituents?
In Federalist No. 78, Alexander Hamilton posited letting voters select judges for limited terms but rejected the idea because “there would be too great a disposition to consult popularity.”
He was right. We should stop putting Supreme Court justices on the ballot.
Martin J. Siegel is a lawyer in Houston and the author of a forthcoming biography of Judge Irving R. Kaufman.