An elected Supreme Court yields higher judicial accountability

The argument

Elected justices are more accountable for their decisions to the public compared to appointed justices because the source of their power and legitimacy is the people. (Accountability means answering for one’s actions or inactions.) The Judiciary is responsible for applying and interpreting the rules of human behavior that legislatures and executives have agreed upon. It is also responsible for the resolution of disputes through the application of common law principles. Such an application becomes the case when there is no statuary guidance. In performing these functions, justices should be sensitive and responsive to the political, economic, social, and moral views held by a majority of citizens. To guarantee this accountability and responsiveness, judicial elections should take place. The mechanism behind this assertion is that the public’s faith and confidence in the Supreme Court are directly linked with their belief in the justices’ impartiality. If there is a perception that justices lack this impartiality, then the public will be less willing to comply with judicial decisions with which they disagree. In the re-elections, the public can remove such justices from office. Therefore, justices need to strictly follow the Code of Judicial Conduct. This Code prohibits justices from making promises of conduct in office and expressing their views on political issues. Overall, the Supreme Court justices will be more accountable to the public if they are elected than if they are appointed.

Premises

Counter-arguments

Elections cannot hold judges accountable for a variety of reasons. These include the low level of voters’ interest in judicial elections and voters’ low level of specific knowledge about judicial issues. If the public is not interested in judicial elections, they will be less likely to hold the justices accountable for their rulings since the rulings will go unnoticed. Similarly, if the public lacks specific information on the Constitution and judicial issues, there can be no talk of judicial accountability. This is because the public does not know if the justices interpreted and applied the law correctly. Another issue is that elections do not always ensure judicial accountability to the public. Since justices receive the most campaign funds from prominent political and business figures, they may become accountable not to the public but to those who finance their campaign. For example, business and conservative groups accounted for 7 of the top 10 spenders on the U.S. judicial elections in 2011-12. These groups aim to influence the interpretation of the law by judges. Because justices depend on their money to win the elections, the subject of accountability shifts from the public to the campaign funders. Additionally, when the voters rely on a political party’s approval in judicial elections, they do not base their voting decision on information about the candidate’s performance and background. Therefore, judicial accountability becomes blurred as justices become accountable to the political party, not the public.

Rejecting the premises

[Rejecting P1] Accountability to majority opinion is the wrong measure for a court whose central function includes protecting minorities and constitutional limits against majorities. A judge who must answer to the electorate for an unpopular but correct ruling is under pressure to decide wrongly, which is why judicial independence rather than responsiveness is the standard design principle. [Rejecting P2] The argument contradicts itself here. It requires justices to follow a code forbidding them from stating views on political issues or promising how they will act in office — which removes precisely the information an electorate would need to hold anyone accountable. Voters are asked to judge performance while the candidates are barred from discussing it. [Rejecting P3] The counter-argument on record disputes the mechanism at the point it must work: turnout in judicial elections is low, and specific knowledge of constitutional and doctrinal questions is not widespread, so most rulings go unnoticed and those that are noticed cannot be assessed for whether the law was applied correctly. [Rejecting C] The counter also identifies who accountability would actually run to. Judicial campaigns require money, and business and ideological groups accounted for seven of the top ten spenders in the 2011–12 US judicial elections; where voters fall back on party labels instead, the line of accountability runs to the party rather than the public. On either route the elected judge answers to someone other than the electorate the argument invokes.