Restore Public Trust in SCOTUS with Retention Elections

During the Spring 2021 semester I taught a new course I created called Controversies in American Politics. The class was designed to allow students to read about and discuss issues pertaining to the design and structure of American politics and political institutions from a historical and developmental perspective.

We generally avoided most policy issues because those are debated ad nauseum without us adding another layer to whether or not we need more or less gun control. Instead, the class analyzed things such as the constitutional design of the Electoral College, the powers of the presidency, the structure of Congress, the development of the two-party system, and the staffing of the federal bureaucracy. We even had a cool research paper written on whether all states would be better off applying the Napoleonic Code as is the custom in Louisiana!

Ever since that class concluded in May 2021, I have been thinking about a design-driven, middle ground solution to address the question of growing politicization and perceived bias related to the U.S. Supreme Court. We don’t need reams of data to tell us what every observer of American politics has understood for quite some time: the politicization of the United States federal courts, particularly the United States Supreme Court is especially problematic and poses a genuinely vexing problem for our country moving forward.

The Quinnipiac University polling data below from www.pollingreport.com only goes back to early 2003, but the share of American voters who say they disapprove of the way SCOTUS is handling its job has risen over the past 18 years. In early 2003 the court held a positive net rating of +29 (those who approve minus those who disapprove) while as of this month it sits at a negative net rating of -12. The court’s overall approval rating has waxed and waned over this time period, but their net rating remained consistently positive until June 2008, recovered briefly, but has been inching downward in 2012, 2013, and 2021 despite a brief uptick in 2020.

Likewise, from 2010 onward the share of voters saying SCOTUS is too liberal has declined while those reporting that it is too conservative has increased significantly with fewer saying the court’s ideological positioning is “about right.”

My purpose here is not to catalog the already exhaustive list of political and policy reasons why the courts are becoming (and are perceived to be) more political, but to instead introduce a suggestion for how to modernize SCOTUS without the drastic steps that have been discussed recently among some politicians such as imposing term limits or having the president pack the court to achieve ideological parity. Perhaps a less extreme approach is in order.

According to the University of Denver’s Institute for the Advancement of the American Legal System (IAALS), 21 states currently utilize some form of system of judicial retention for sitting judges. The way it works is that a judge is either appointed or elected (depending on the state) to a fixed term. Following their initial appointment or election they must stand before the voters for a retention vote and the public is given the option of either voting “yes” or “no” on retaining said jurist for another fixed term of the same length.

That’s it. There is are no partisan primaries, head-to-head elections to endure, or anything of that nature. The voters decide whether a jurist deserves another term or not. If they agree, they vote yes. If they disagree with keeping them on, they vote no.

IAALS says that one major benefit of this system is that “judges do not face opponents in retention elections, they usually do not need to raise money and conduct campaigns. At the same time, special interest groups are not as active in retention elections as they are in contested elections because a good judge’s performance speaks for itself. Although special interest groups can spend money to oust a judge they do not like, they cannot select a replacement who fits their particular agenda because the judicial nominating commission is tasked with selecting nominees to fill vacancies.”

Realistically, a process by which SCOTUS justices must stand for a retention vote—say at the ten-year mark of their initial confirmation—will most certainly draw the attention and activism of special interest groups. That’s just the nature of the beast and should be expected. However, as a democratic pluralist, I welcome the opportunity for citizen-driven organizations, interest groups representing actual voters, and individual voters themselves to weigh in on whether or not a judge ought to be kept on the job for another term. After all, these are the courts that play a vital role in the lives of all citizens.

While I am not completely convinced this is a system will ever come to pass with regard to Supreme Court justices, I think it deserves some attention, time, and contemplation. As the public’s perceptions of SCOTUS shift in a more negative direction it may be that such an infusion of participatory democracy by the voters could help remedy the situation.

Think about it—Justice Amy Coney Barrett assumed office on October 20, 2020 to replace the late Justice Ruth Bader Ginsburg. In my hypothetical plan, she would face a retention vote sometime before her ten-year mark in October 2030. Should she receive 50% plus one vote she is retained for an additional ten-year term on the Supreme Court. Should she receive less she is replaced by a new presidential nominee. The voters decide—based on whatever metric they see fit—whether she should stay or go.

Such a plan allows for public input into the courts, acknowledges the political nature of the courts that some still seem to deny to this day, enables the voters to temper the clubby judicial  politics of Washington, allows for the imposition of a soft “term limit” without forcing judges off the bench in an arbitrary way, and embraces the nation’s participatory political spirit without subjecting United States Supreme Court justices to the rigors of an actual, national head-to-head election campaign. It may also make voters feel somewhat greater confidence in the institution if they are able to have some say in who serves within it.

I doubt this this plan will come to pass, but perhaps it is an idea worth debating.