Should we elect our Supreme Court Justices?

(soft music) - We've all been there.

It's a normal Wednesday and then your phone vibrates.

(vibrating hum) What, a Supreme Court Justice is going to retire?

And suddenly, the political world is like (imitates explosion) - And we have just learned that Justice Anthony Kennedy will be retiring.

- It's the decision that could reshape the Supreme Court for a generation and be a defining moment for the Trump Presidency.

- This will be the biggest change in the Supreme Court in at least half a century.

- In the U.S., our process for selecting Supreme Court Justices is pretty well known.

It usually begins when a sitting Justice, like Anthony Kennedy sends a letter to the President announcing his retirement.

According to Article II of the Constitution, it's then the President's job to nominate a new Justice.

The name of the President's nominee is then sent to the U.S. Senate where they are either confirmed or rejected by a majority vote.

This process has evolved over the years but as of today, those are the textbook basics.

Then on the other side, there's real life, which goes something like this.

As soon as the resignation drops, people go haywire.

Protests erupt, lawmakers grandstand, and the nomination process turns into political football.

Which actually makes sense because today, when Congress, the political parties, and even the Supreme Court are divided, everything from abortion law to environmental policy to the way unions work, literally hinges on the one person the President nominates.

Alright, so why was the Supreme Court established in the first place, and what is it supposed to do?

- The Supreme Court was established to provide a final court in the United States, to give definitive interpretations regarding what the Constitution means.

And that's important because under the United States' first Constitution called the Articles of Confederation, we didn't have a Supreme Court, the result was many interpretations of the law, and no real consensus.

- The Supreme Court has the final word on what's legal in our country.

Until we the people amend the Constitution.

In the early 1800s, under Chief Justice John Marshall, the Supreme Court established the power to nullify laws created by the other two branches of government.

It's called the concept of Judicial Review.

The thing is, you don't have direct control over it.

The Supreme Court was designed so that its Justices don't have to pander to majority whims.

Which means, it's the only branch of our Federal Government you don't get to elect.

- I mean think about what happens if we don't like the President, if we don't like our Senator, or a member of Congress, what can we do?

Eventually vote them out of office.

But we can't vote the Supreme Court out of office because the President appoints, the Senate confirms, and subject to good behavior, they're there for life.

And this poses a problem because at least many of us think that in American democracy, that policies, laws should be made by those people who are electorally accountable.

What I mean by that, by people who we elect.

Yet, the Supreme Court, unelected individuals, nine people get to make some of the most critical decisions in our society and we cannot elect them.

- Over time, and especially now when the other branches of government seems unable to get anything done, the Supreme Court has become a major player in resolving both legal and perhaps political issues.

- I know you were deeply disappointed in the Supreme Court's ruling on same sex marriage, and you called for, before the decision actually, you called for term limits.

- As Justice Scalia, I think very brilliantly wrote, what you now have is that our country is being ruled by a majority of nine lawyers who are not representative of the population as a whole.

- So why don't we give Supreme Court Justices term limits?

- The hope was by having them appointed by the President, subject to Senate confirmation, it would insulate them from politics so that they could make decisions based upon what they thought the law was as opposed to what politics was.

- On top of this, the framers never intended for our politics to be partisan.

When the Supreme Court was established by the Constitution, there weren't any political parties in the United States.

- When George Washington, our first President left office in 1796, he gave a farewell speech, sort of moaning- or bemoaning rather, I should say, the rise of political parties and how that would be so divisive.

And so our Constitution, really isn't set up in a way to recognize political parties.

We figured out a way to kind of gerrymander and jerry rig to get them in there, but doesn't really fit and our framers did not really like political parties.

- So have life terms and the appointment process put the Supreme Court above politics?

- One of the best predictors of how a Supreme Court Justice is gonna vote, look at which President appointed that person.

It's pretty good predictions on Republican versus Democrat, we can almost figure out how they're gonna vote.

In fact, there's lots of studies in political science that really say that political biases, views of the Justices, political views matter.

We're hoping that we're not saying there's just politicians in robes but sometimes they kinda look like politicians in robes.

- There have been many famous that prove just how influential the courts are in America.

Everything from Dredd Scott versus Sanford in 1857, which denied citizenship to African Americans free or enslaved, to Roe v Wade in 1973.

Which found that women have a constitutional right to an abortion.

More recently, it legalized same sex marriages across the country, upheld the President's travel ban, and said that states can now make companies collect sales tax on purchases you make over the internet.

Which brings us to our main question: with ideas as important as these hanging in the balance, should the people elect their Supreme Court Justices?

- In 37 states in the United States, judges are elected.

On the one hand, state judges really become sort of...representatives on the bench.

The people get to select them, get to vote for them, which means they're held accountable directly by the people that way.

However, we also know, and there's some evidence that suggests that elected judges are less likely to support criminal due process rights, and I say that because they might be afraid that if they support defendant rights, they might not get elected.

And we've also seen in the last 15 to 20 years judicial elections become highly polarized in high stakes, high dollar contests to where they're major fights with replacing judges through elections.

The upshot being, it's just not clear that either elections or an appointment process necessarily takes judges out of politics.

It's a different type of politics, it's a different way of selecting them but it's hard to really make an argument that one system is better than another.

- So as you've heard, there are certainly ways we can change this part of our political system.

Which leads to you.

If we were founding our country today, should we be able to elect our Supreme Court Justices?

And should they have term limits?

How would this game of political football play out then?

(guitar strumming) This program is made possible by the Corporation for Public Broadcasting.