Judicial election is a requirement for democracy

The argument

Direct democracy requires people to elect all public officials, including Supreme Court justices. The notions of popular sovereignty and collective self-determination imply that as important officials in our democracy, Supreme Court justices should be selected by those over whom they hold power. The use of an appointive scheme or a merit selection scheme reduces public participation. According to the social contract theory of Rousseau, democracy is incompatible with representative institutions. An appointive scheme means that the voters’ representatives and not the voters themselves choose justices. Even worse, a merit selection scheme means that an unelected commission of legal experts can narrow the field. Hence, any system of representatives in the legislative body is illegitimate and contradictory to the liberty of people. Supreme Court appointments are an aristocratic device in conflict with principles of democracy. Instead of representative democracy, Rousseau is in favor of direct democracy. It is only with the direct participation of people that the public officials have legitimacy. The use of judicial elections increases democratic representation within the State and furthers the democratic legitimacy of the Supreme Court. Judicial elections ensure the legitimacy of the Supreme Court not only in theory but also in practice. Through periodic election activities and their decision making accountability to the public, justices regularly interact with and impact the community. Such interaction due to the judicial franchise forms the basis of democratic legitimacy.

Premises

Counter-arguments

Judicial elections do not always create democratic legitimacy due to low voter turnout. Participation is traditionally low for judicial elections. There are many theories to explain such low participation. For example, previous studies connect a citizen’s lack of education with participation in complex issues. Candidates generally focus on their legal résumés and discuss court administration or certain judicial reform matters during their campaigns. Since not all citizens are well-informed about the Constitution and the justices’ profiles, very few people vote in the elections. Therefore, only some opinions are represented through direct democracy. Judicial elections cannot fully establish the legitimacy of the Supreme Court.

Rejecting the premises

[Rejecting P1] Courts hold power of a particular kind: their function is to apply law to those who hold power, majorities included, which is why judicial independence is generally treated as a democratic requirement rather than an exception to one. [Rejecting P2] Rousseau's rejection of representation would delegitimise the legislature too, so the premise proves far more than the position needs — and appointment by elected representatives who are themselves accountable is a chain of authorisation rather than an aristocratic device. [Rejecting P3] Accountability to the public is what critics fear rather than what they doubt: a judge facing re-election has an incentive to decide as voters prefer, which pulls against deciding as the law requires — and on the counter's account turnout in judicial elections is low enough that the resulting mandate speaks for very few.