Dear Ted Cruz: Electing SCOTUS Judges Might Not Work Out As Well For You As You Hope

Flailing about for some sort of cogent conservative reaction to the Supreme Court decisions this week, National Review apparently allowed Ted Cruz to scribble out some meandering prose on its website. That may have been a mistake.

Ted Cruz’ solution to “judicial tyranny”? Direct election of SCOTUS judges. No, really. But let’s set aside the obvious fever dream futility of attempting to make this alteration to the Constitution to serve social conservative interests and take his suggestion at face value.

Direct election of judges has admittedly been a key page out of the conservative playbook for a long time now. Big money in theory keeps justices aligned to corporate interests, while conservative interest groups can ensure that judges fear to render verdicts against their pet issues from guns to gay marriage. As public policy, of course, this is a terrible idea: the entire point of having unelected judges is that they will feel free to protect the Constitution and the rule of law against the unjust tyranny of the majority. Making judges fearful of the public whim negates much of the entire purpose of having a judicial branch to check the legislative.

But even from a purely conservative utilitarian standpoint, that strategy tends to work best in more conservative states and where judges are elected in non-presidential cycles. Also, much has changed in the last decade in terms of popular opinion.

The underpinning of Cruz’ argument seems to be that the justices of the Court have instituted unpopular judicial tyranny on the public by upholding Obamacare and gay marriage. But it’s not at all clear that if Supreme Court judges were elected by popular vote, the results would favor conservative interests. The same demographic forces that make it increasingly difficult for Republicans to win presidential elections would carry similar headwinds against conservative justices. A nation that elected Barack Obama twice would be far likelier to toss out Scalia than Ginsburg.

Moreover, there’s no evidence that a serious public opinion backlash will arise against the Court over marriage equality and the Affordable Care Act, let alone one strong enough to engender a serious recall election threat under such a system. National public opinion has shifted dramatically in favor of marriage equality, and Americans strongly oppose repealing the Affordable Care Act. If Ted Cruz believes a populist backlash would scare the Supreme Court into submission, he’s obviously looking at the wrong polls.

Indeed, by far the most unpopular of the SCOTUS’ recent decisions was its stand on Citizens United: a full 80% of Americans opposed to the decision, and 65% of Americans strongly opposed. The public backlash over giving plutocrats and corporations unfettered purchasing power over our elections has been far stronger than any old-school conservative revanchist revolt against liberal judges.

All of which is to say, Ted Cruz should probably be careful what he wishes for.

David Atkins

David Atkins is a writer, activist and research professional living in Santa Barbara. He is a contributor to the Washington Monthly's Political Animal and president of The Pollux Group, a qualitative research firm.