Even in the age of social media and internet searches, in which our public and private lives are increasingly (and often voluntarily) blurred, there is still something jarring about learning that your identity has been misrepresented or misconstrued. For Thomas Robins, that moment came when Spokeo, Inc., a “people search engine,” assembled an online profile of him that contained an array of incorrect information, including inaccurate statements of his age, family status, wealth, and education. Robins responded by filing a class action complaint against Spokeo in federal district court, alleging that Spokeo’s willful failure to check the accuracy of his personal information entitled him to statutory damages under the Fair Credit Reporting Act of 1970 (FCRA).
One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His proposal: a Constitutional amendment that would replace life tenure for the Supreme Court with periodic retention elections. Under the Cruz plan, each Justice would face the voters in the second national election after initial confirmation, and every eight years thereafter. Justices would need a simple majority of “retain” votes to stay on the bench. Justices who are not retained would be replaced and would not be eligible for reappointment.
The Senator couched his proposal as a response to “a long line of judicial assaults on our Constitution and the common-sense values that have made America great.” Offering some red meat for his conservative base, he added that retention elections would provide a remedy for “the decisions that have deformed our constitutional order and have debased our culture” by “giving the people the regular, periodic power to pass judgment on the judgments of their judges.”
As a tool of partisan accountability, the proposal shouldn’t work. Retention elections have been used at the state level for 75 years, and only in very rare instances—California in 1986, Iowa in 2010—have multiple justices on a single court lost retention elections in the wake of a politically controversial ruling. Citizen anger over controversial decisions generally does not translate into judges being kicked off the bench. Put another way, retention voters are assessing something more than mere case outcomes when determining whether to keep a judge in office.
This may seem surprising, given that politicians routinely try to rally their bases in reaction to Supreme Court decisions they disfavor. (Consider the left’s reaction to Citizens United or Heller, or the right’s reaction to Sibelius or Obergefell.) But ordinary voters don’t think like politicians. As I have documented here and here, to everyday citizens, a judge’s perceived commitment to a fair legal process is far more important than specific case outcomes. Voters will forgive a judge with whose rulings they disagree as long as those rulings appear to have been reached fairly and with respect for the court’s (often circumscribed) institutional role. Voters are less forgiving, however, when a judge appears to have intruded into the domain of the legislature, acted obnoxiously, or reached a decision that lacks a solid legal grounding.
Senator Cruz is a smart man, and he must know that voters assess judges differently than they do legislators or executives. So I doubt he is using retention merely as a conduit for channeling partisan anger. Quite the opposite: he appears to be counting on voters to assess the Justices on their commitment to procedural fairness and institutional humility, and to find that commitment lacking.
Unfortunately, in this regard the Supreme Court has not helped its own cause. The series of befuddling opinions in Obergefell v. Hodges nicely illustrates the problem. Justice Kennedy’s majority opinion on same-sex marriage was laden with soaring, poetic rhetoric about the profundity of marriage and the entitlement of all people to “equal dignity in the eyes of the law.” One is apt to agree with these sentiments as a matter of policy or even morality. But a constitutional exegesis demands something more. The Obergefell majority never cleanly and clearly explained why it was the province of the Supreme Court to accomplish what Congress and state legislatures might have (eventually) done themselves. Indeed, Obergefell was arguably far less grounded in the constitutional text than either of the equivalent efforts on same-sex marriage offered by the Iowa Supreme Court and Massachusetts Supreme Judicial Court years earlier. In doing so, the majority opened the door to criticisms that the Court had overstepped its institutional bounds.
The dissenting opinions subsequently pulled that door right off its hinges. The Chief Justice lamented, “The majority’s decision is an act of will, not legal judgment…. Just who do we think we are?” He went on: “Five lawyers have closed the debate and enacted their own view of marriage as a matter of constitutional law.” Justice Scalia went further, charging that the majority opinion “lack[ed] even a thin veneer of law” and ruling a “system of government that makes the People subordinate to a committee of nine unelected lawyers.” Justice Alito picked up the same theme, warning that the Constitution forbids “five unelected Justices from imposing their personal vision of liberty upon the American people.” Only Justice Thomas constrained his dissenting opinion to a legalist discussion about constitutional meaning.
As a debate over national policy or constitutional philosophy, the five Obergefell opinions make fascinating and important reading. As a vehicle for increasing, or even sustaining, the institutional legitimacy of the court, however, they are collectively a train wreck. Anyone who reads the majority opinion and suspects the court of moderately overstepping its institutional role will, upon reading the dissents, find a far more grievous critique. The Court, we are told, undermined the core of American democracy through unelected lawyers and (in Justice Scalia’s inimitable words) “judicial Putsch.” Even if one agrees with the outcome of the case (and I count myself among them), the internecine squabbling over institutional overreach is deeply unsettling. The majority could have worked harder to formulate an opinion that sounded less like public policy, and the dissenters could have made their points with far more responsible rhetorical flourish. No wonder Senator Cruz felt that the public might be ready for retention elections.
Thanks to the court’s self-flagellation, the Cruz proposal cannot be treated as mere pandering to his right-leaning base. Public respect for the judiciary is near a 15-year low, and allegations by the Justices that their own colleagues do not respect the rule of law cannot help. Those who want to see the Court regain its lost institutional legitimacy can only hope that the Justices recognize the damage that comes from their public dysfunction, and collectively work to repair it.
Those inside and outside the legal academy are still coming to terms with the sudden and tragic loss of Florida State University law professor Dan Markel, who was shot and killed at his Tallahassee home on Friday. Dan touched the lives of hundreds of students and colleagues. I was fortunate to know him since law school, and wanted to share some (admittedly scattered) memories of a friend lost too soon.
Even as a 1L, when most of us felt uncertain and trembling about our career decisions (or even just making it through the next class), Dan carried a certain unusual confidence. In criminal law, he argued in favor of sending people to “virtue schools.” He lugged his old Macintosh laptop to all classes, dragging the plug carefully across the floor behind his classmates’ chairs. On Saturday afternoons after synagogue, he was known to offer friends a mean vegetarian chopped liver. He was a character, and a sincere one.
I lost daily contact with Dan after we graduated in 2000, but he resurfaced in my consciousness one day in 2005, when he launched Prawfsblawg. I was in private practice and enjoying it, but reading the academic posts by Dan and his friends added a powerful new dimension to the legal issues I was contemplating. I wanted to be part of it. An in 2009, when I finally decided to break into the legal academy, Dan warmly and cheerfully facilitated my introduction to colleagues far and wide. He reviewed my early scholarship. Even though I wrote in civil procedure and he in criminal law, he connected me to the right people almost effortlessly. Later, after I joined the New England Law faculty, he encouraged me to guest blog at Prawfs, which I have done and enjoyed on more than one occasion.
It is remarkable that someone would do so much to help an old classmate who had been out of sight and out of mind for almost a decade. But that was just Dan being Dan. The outpouring of grief at his loss on Facebook and Prawfsblawg is a testament to how many lives he touched. He was taken too young, and we will miss him greatly. Baruch Dayan Emet.