Presidential contender Ted Cruz is so infuriated by the U. S. Supreme Court’s (SCOTUS) June 2015 decisions rejecting a challenge to the Affordable Care Act (ACA) and legalizing same-sex marriage nationwide that he is proposing a Constitutional Amendment to subject SCOTUS justices to elections.
According to Cruz’ proposed Constitutional Amendment, SCOTUS justices must be approved by a majority of American voters and by a majority of voters in at least half of the states. A justice’s failure to obtain voter approval would result in his/her removal from office and he/she would be barred from serving on the Supreme Court forever.
Meanwhile, James Madison and Justice John Marshall are spinning in their graves. In the first place, the judiciary is supposed to be independent so it can make decisions without political influence or fear of reprisal; ergo, SCOTUS justices “shall hold their offices during good behavior,” which implies lifetime tenure unless impeached by Congress.
Secondly, the possibility of impeachment means that SCOTUS justices are already subject to Congressional vote for impeachable offenses.
Third, a Constitutional Amendment is highly unlikely: approximately 200 Constitutional Amendments have been proposed in every 2-year Congressional term, totaling well over 1,000 proposed Amendments; blowing the dust off my Constitutional Law course, I believe ratification of a Constitutional Amendment requires agreement of 2/3 of Congress and 3/4 of all state legislatures; that high bar standard resulted in Congressional approval of only 33 proposed Amendments and ratification of only 27. Add to that mix the fact that more than 60% of Americans reportedly support same-sex marriage and ratification by 3/4 of all state legislatures seems impossible. Tall order, Ted.
Fourth, if Cruz’s Amendment was ratified, conservative SCOTUS justices might be the ones voted out. Cruz is infuriated by the SCOTUS “judicial activism” in its rejection of the challenge to the ACA and its legalization of same-sex marriage. However, the SCOTUS was no less “judicially activist” in its Citizens United, Hobby Lobby and Voting Rights Act decisions. I do not recall Cruz objecting to the SCOTUS decisions in Citizens United and Hobby Lobby, or when the SCOTUS struck down Section 5 of the Voting Rights Act. Many citizens were angered by one or more of those decisions and if given a chance to vote on SCOTUS justices, Americans might eliminate conservative justices rather than liberal justices.
Giving Cruz the benefit of the doubt, I believe he knows all the above and that the proposed impossible Amendment is a terrible idea, no matter who supports it. However, he is running for President and must please his constituency. The question is whether his constituency will realize that Cruz is offering them a soup sandwich.
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