Supreme Court Retention System

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Following the 2015 Supreme Court decisions regarding the Affordable Care Act and same-sex marriage , Presidential candidate and Texas Senator Ted Cruz wrote: "the time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the court itself." The solution offered by Senator Cruz to address the lawlessness of the court was to subject the Justices to a national retention election. Life-tenure, in the eyes of many, is one of the fundamental problems with the Supreme Court. Many, including Cruz, have focused specifically on life-tenure at our highest Court. There has been less focus on reforms to the entire Article III Judiciary as it currently stands. However, the same problems that face the Supreme Court also seem to face other Article III …show more content…
This paper proposes to change Article III, which would address the issues of not only the Supreme Court but of all Article III courts. In borrowing from the success of systems adopted by the States, this paper proposes the implementation of a retention system for federal judges and justices, achieved through retention votes held in the United States Senate. As drafted, this system allows for a more democratic process in which elected representatives will be able to support or oppose retention per their constituents' views. The proposal is careful to balance the necessity for an independent judiciary by keeping a high standard for rejecting the retention of a federal judge. Given that similar issues face both the Supreme Court and lower federal courts, it is believed that the public's support for the elimination of life-tenure will extend to support for reform to the entire Article III judicial body. By reconstructing the entire Article III judicial body, this proposal addresses the fundamental issues of politicization of courts while avoiding damaging the independence of

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