All eyes are on Amy Coney Barrett and Congress this week as the Senate prepares to confirm a Supreme Court justice just days before the election. This would be the third Trump SCOTUS nominee to ascend to the highest court in the land in only four years. Although the political battles surrounding each SCOTUS nomination take center stage, the judicial system is much bigger than the Supreme Court. With every federal judge Trump appoints, the president strengthens his grip on a judicial system that is a systematically ill-equipped safeguard against democratic erosion.
Throughout his four years in office, legal battles have raged throughout the country as federal and district courts debate the constitutionality of President Trump’s orders. In 2017 and 2018, several versions of Trump’s travel ban were struck down at the federal level before finally being accepted by the Supreme Court in 2018 in a 5-4 vote. Just a few months after this ruling, U.S. District Court judge Ketanji Brown Jackson struck down a controversial executive order that would make it easier to fire federal workers and significantly reduce the power of unions in collective bargaining. The list of legal battles between the Trump administration and federal courts across the country goes on and on.
These legal battles are crucial for curbing executive power. A federal government without a judiciary that can challenge unconstitutional laws is like a sports match without a referee [1]. The challenge for a would-be autocrat is to eliminate the courts as a challenge to executive authority as quietly as possible. Some methods of doing so are quieter than others. In Argentina, Juan Perón and his legislature impeached three of the five supreme court justices and appointed loyalists to the bench. In Hungary, Prime Minister Viktor Orbán packed courts and appointed loyalists to what should have been nonpartisan offices. When courts lose autonomy, there is a slippery slope for democratic backsliding. What makes the U.S. executive nomination process so dangerous in this regard is not only how quiet it is, but how institutions are set up to facilitate executive control of the judiciary.
But aren’t we all taught in school that judicial autonomy is built into the constitution? In Federalist, no. 78, Alexander Hamilton emphasizes the need for an independent judiciary that transcends political circumstances [2]. However, judicial autonomy is nothing more than a myth the context of a modern U.S. judicial system. “The judiciary is influenced by the political environment in which it operates, and judges are unlikely to engage in a sustained resistance effort against powerful incumbents.” [3] This means that judicial institutions can be structured by a would-be autocrat in ways that generate favorable outcomes for the regime. This implication is directly at odds with the idea of an independent judiciary.
This entrenchment of federal justices within a political framework is a symptom of democratic erosion that has vast anti-democratic consequences. One of these consequences is that a single president can leave a disproportionate impact on the judicial system depending on factors that are outside of institutional control. Trump is a case in point. As the number of federal judges appointed by Trump climbs, the scales of justice quietly tip in his favor. Trump has appointed nearly a quarter of all active federal judges in the country. This amounts to more federal appeals court judges than any recent president at the same point in their presidency. President Trump is showing us that you don’t need to pack the courts or bribe judges to expand executive authority. All it takes is a judicial system entrenched in politics and a nomination process that gives free reign to the executive branch to choose its referees.
It’s easy to point out flaws in the existing system, but are there viable alternatives to the current nomination structure? Perhaps the most insightful alternative is currently at work in Alaska. As the last state to draft its constitution, Alaska had the distinct advantage of examining 49 different plans for how the judicial nomination process ought to occur before deciding on its own. Instead of the governor having the unchecked authority to pick whoever they see fit, Alaska has a nonpartisan judicial council that reviews potential nominees before presenting a list of vetted candidates to the governor. The governor then selects a nominee who, if appointed, must stand in a yes or no retention vote by the people of the state to determine whether or not that judge remains in office. This process emphasizes the nonpartisan nature of the nomination process without giving the executive branch the unchecked authority to appoint loyalist judges. Pre-nomination vetting and retention elections have empirically demonstrated benefits as it concerns removing judges from the influence of politics. Pushing for this change in nomination structure meets the needs of an independent judiciary without resorting to more controversial fixes such as court packing.
The way in which the courts can be used as a tool to promote executive authority warrants a revisitation of the judicial nomination process. Although SCOTUS gets all the attention, every federal court nomination quietly adds to already unbalanced scales of justice. Until the judiciary is removed from its systematic political entrenchment, a would-be autocrat can use the system to appoint judges that will advance the goals of the regime rather than the goals of democracy.
Endnotes
- Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing, 2018), 135-138.
- Alexander Hamilton, Federalist, No.78, in The Federalist Papers, ed. Lawrence Goldman (Oxford: Oxford University Press, 2008), 383-384.
- Ozan O. Varol, “Stealth Authoritarianism,” Iowa Law Review 100 (2015), 1689.
Hi Michael, great post! I enjoyed your insight about how, while judicial autonomy is guaranteed in the Constitution, the system is not working as intended in today’s extremely polarized political landscape. I like that you brought up the Federalist Papers to show how our current climate has exposed weaknesses in systems of judicial autonomy. I think it is worrying how presidents can obtain power through the judiciary using legal means. The fact that Trump has, as you said, nominated a quarter of all active judges is legal, but still represents a power grab for himself and the Republican Party. Clearly, the safeguards to ensure judicial independence have broken down in a polarized system where parties like the GOP value ideological advancement over protecting democracy.
I found your suggestion of the Alaska model to be intriguing. Do you think that the American people should get to participate in retention votes for federal judges in all states? Would you also suggest this for the Supreme Court? I like the idea of democratizing the selection process for judicial nominations, and I do find the principle of pre-nomination vetting to be an interesting thing to consider. However, I have several questions about the retention voting process. Primarily, I am not sure if, in a country with chronically low voter turnout, whether people will take the time to research the judges’ positions to make an informed choice. Also, could the fact that judges know they will have to face the public in a vote impact how they rule on cases? This may insert politics and the optics of rulings into a judge’s calculations when they decide how to rule on a case. Overall, there are no easy answers on how to de-politicize the court system, but you provided very thought-provoking suggestions.