Chief justice John Roberts and associate justice Anthony Kennedy (Pool Image/Getty)

Within the space of just 48 hours, the United States Supreme Court ruled that the president is above the law; that straightforward statutory words may be twisted to mean the opposite of what they say; that discrimination — heretofore, the textbook example of a willful act — can be committed unconsciously, thereby supplanting our constitutional foundation of equal opportunity for all with the totalitarian’s dream of guaranteed outcomes for favored factions; and that five politically unaccountable lawyers, by dint of being issued robes, may impose their vision of the good society on 320 million Americans, reimagining our most basic institutions, our founding law, centuries of jurisprudence, and millennia of civilization.


Like millions of Americans, Senator Ted Cruz (R., Texas) thought this was a disastrous couple of days for the country. So did the rest of the Trumped-up cavalcade of GOP presidential hopefuls — or, at least, they said they did. Cruz, however, undertook to do something about it. He proposed an amendment to the Constitution that would subject the justices to retention elections.

“No social transformation without representation” adjured Justice Antonin Scalia in dissent from the five-justice diktat that 50 states end their democratic debate and redefine marriage to include same-sex couples. At least for now it is “couples.” No coherent limiting principle stops Justice Anthony Kennedy’s rendition of “All You Need Is Love” from devolving into “Why Don’t We Do It in the Road?” — and yes, for the modern Supreme Court, Lennon and McCartney are more apt than Blackstone and Story to shed light on the countless ways we might “enjoy liberty as we learn its meaning.”


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Cruz’s amendment simply takes up Scalia’s suggestion. Our would-be overlords would be required to account to us if they wanted to continue ruling us. Here at National Review last week, the senator outlined his proposal: The justices would face the voters every eight years, earning retention only if they are approved by a popular national majority plus majorities in at least half of the states.


For this, Cruz has drawn the ire of the estimable George Will. The columnist lambastes the senator for trying to “turn the court into a third political branch” over “what he considers” the justices’ “political behavior.”


Well, Homer nods.

My abiding respect for him notwithstanding, Will has this one exactly backwards. What Cruz considers to be political behavior? Considers?

Alright, let’s “consider” the same-sex marriage ruling. In an opinion dutifully joined by the Court’s four “progressive” justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), Justice Kennedy ruled that the states were powerless to define marriage for themselves because our Constitution makes its definition a federal question — the answer to which Kennedy purported to find in a remote Fourteenth Amendment penumbra that had gone unexplored lo these 147 years.

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But hold on: Just two terms ago, the jurisprudential blink of an eye, the same Anthony Kennedy writing for the same four progressives, ruled that the federal government was powerless to define marriage because our Constitution makes its definition a state question — the answer to which was for the people of each state to work out for themselves.

This breathtaking shift can be explained only by politics. It is not law. Law is obliged to be rigorously logical and consistent. It is in politics — the realm of opportunism, compromise, and the swerves of popular passion — that logic and consistency are merely an option, and often not even an aspiration.

Ted Cruz is not ‘turning the court into a third political branch.’ George Will has mistaken the coroner for the surgeon.

The issue in 2013 was the Defense of Marriage Act, which progressives despised because it cut against the campaign to promote same-sex marriage in the states. The issue last week was the decision of several states to reaffirm marriage as traditionally understood, which progressives despised because it cut against the campaign to mandate same-sex marriage in the states. The legal rationales for the two decisions cannot be squared, but the legal rationales were beside the point. The Court was doing politics, through and through.

As I pointed out last weekend, the Court’s four progressives are not jurists applying legal principles to resolve cases. They are a voting bloc of super-legislators, implementing an ideological agenda. In tandem with Kennedy and Chief Justice John Roberts, who walk on the wild side when personal or political calculation so dispose them, The Four prescribe policy that hundreds of millions of people — people who have no cases before the Court — are expected to accept without recourse. In this, The Four are indistinguishable from, say, the Congressional Black Caucus . . . except that the Caucus must account to its constituents and cannot, under the guise of “constitutional interpretation,” proclaim its pieties as the last, unreviewable word on whatever subject.


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Cruz is not “turning the court into a third political branch.” Will has mistaken the coroner for the surgeon. The Court already is a third political branch. Cruz is trying to rein it in the only way a political branch gets reined in: by requiring political accountability.

Will frets about what would become of the high court’s “prestige” if its incumbents were subjected to elections. But the point is not the justices’ amour-propre. The Court’s prestige does not owe to the jurists’ insulation from electoral politics; it owes to their function in our system: the dispassionate reading of legal texts and application of developed legal principle. That function, not concern over spectacle, is why justices are not subjected to the ballot box.

And it is that function that the Supreme Court no longer performs. How, Will wonders, would a politically accountable Court “stand athwart rampant executives and overbearing congressional majorities”? When Will wrote those words, the ink was not yet dry on the Court’s Obamacare ruling, which upheld a rampant executive rewrite of a law rammed through Congress by an overbearing majority. Yet it is somehow not parody.

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Will is surely right to be concerned about the specter of national judicial elections. I suspect they would be less harrowing than he supposes. Cruz is not talking about having justices run against each other for office. At issue would be whether a justice’s record warrants retention on the bench; if he or she were voted out of office, that would create a vacancy that would have to be filled in the familiar manner outlined in the Constitution. This would not be an election between candidates, each making commitments to this and that interest group in hopes of edging out the rival. It would be a referendum on the American people’s conception of the judicial role and the justice’s fidelity to it.


Of course it would be better if we did not have to do something like this. It would be better if Congress and presidents had used their constitutional appointment and impeachment powers to make clear that judges were expected merely to judge (a hard enough job). It would be better if Congress had used its constitutional control over the judiciary’s jurisdiction to minimize the opportunities for judicial imperialism.

#related#But they have not. Thus, as reformer types like to say, the system is broken. Cruz did not break it; the justices did, with lots of help. Cruz is trying to fix it: proposing a political check to pressure a politicized institution into reverting to the Court Will is nostalgic for — the nonpolitical branch that fortifies limited government.

Conservatives, it should be stressed, are not asking for a Supreme Court that imposes our vision of marriage and market-based health care, or that excuses discrimination when it actually occurs. We are asking for a Supreme Court that upholds the constitutional framework of divided government; that assigns law- and policy-making to the people’s representatives at the state or federal level, depending on the subject matter; and that upholds the liberty guarantees that are actually in the Constitution, rather than degrading them in an arrogant exploration of “existence, of meaning, of the universe, and of the mystery of human life.”

We are asking to go back to ruling ourselves.