Davis Merritt: ‘Unelected, unaccountable’ justices are essential

People who, like Sen. Ted Cruz, R-Texas, want to make the federal courts just another appendage to America’s frozen political machinery are expressing a death wish for the republic.

Electing justices or making them subject to retention votes would not only violate the core principle of separation of powers but also would usher in an era of pure majoritarian rule in which basic rights would be subject to suspension by popular whim.

Politicizing the court (beyond the nominating and confirmation process) has never been a good idea, but it is particularly dangerous in these days of polarization so complete that compromise is impossible.

With every major court decision, the “losers,” right or left, cry foul and propose all sorts of brainless limitations on the justices. They fail to realize that many of the crucial cases decided by the justices would never have reached that level if the normal political process of comity and compromise worked as it should. When Congress is unable or unwilling to resolve the toughest issues, the court becomes arbiter of first rather than last resort for people with grievances.

As a result, we hear a lot of griping about “unelected and unaccountable” judges “overreaching and abusing” their authority – even, sometimes, from the justices themselves, though in a quite different context.

The people who wrote the U.S. Constitution knew well the threats to liberty that arise when judges are accountable to anyone or anything other than their own consciences. The fact that they did not limit judges’ tenure and ensured their compensation sprang directly from the ninth grievance against King George III cataloged in the Declaration of Independence.

Insofar as possible, they insulated judges from the representational stresses of the legislative branch and the power of the executive, because that was the only way to ensure the core principle of a government of laws, not of men.

The molten rhetoric that follows major decisions such as those on gay marriage and health care undoubtedly will flow into the 2016 election. We’ll hear a great deal more about the need to fix that unbroken part of our governing mechanism. It will be time spent constructing dreams that could only become nightmares if the wishes of the reformers were realized.

Particularly in today’s political environment, those who would make judges elected and accountable are obliged to answer this question: elected by whom and accountable to whom? Charles and David Koch? Or George Soros? The National Rifle Association? Or the American Civil Liberties Union?

But the appeal of the rhetoric about “unaccountable and unelected” judges is so strong that, unfortunately, three of the four justices who dissented in the gay marriage case could not resist. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito all used versions of “unelected” and “unaccountable” in arguing that the court majority improperly short-circuited the democratic process when it declared a constitutional right to marry.

It would be an error, however, to infer from the dissenters’ language that they would favor electing judges or making them directly accountable to anyone for their decisions. They were, rather, scolding their colleagues: Because you are not elected and not accountable, you may not invent a right that’s not enumerated in the Constitution.

All nine justices were doing what they promised; once more, their part of the system worked as designed.

This story was originally published July 13, 2015 at 7:01 PM with the headline "Davis Merritt: ‘Unelected, unaccountable’ justices are essential."