By Oswald Sobrino, J.D.; M.A. (Econ.); M.A. (Theo.); M.L. (Master of Latin), doctoral student, University of Florida.

Monday, December 23, 2013

My Modest Proposal for the Supreme Court

Why not make the office of justice on the U.S. Supreme Court an elected position? Here is the logic. We really have three "houses" of Congress: the House of Representatives, the Senate, and, in practice, the Supreme Court. All three really participate in making law. In effect, the Supreme Court is a de facto part of the legislative branch.

At one time, Senators were not elected directly but by state legislatures. That changed in 1913 via the 17th Amendment. Thus, arguably, the logical next step is to extend the same principle of direct election to what is, for all practical purposes, the "third house" of Congress: the Supreme Court. And, after all, we are very used to electing state supreme court justices.

One benefit may be more educational diversity on the Supreme Court. The media have pointed out that the Ivy League is tremendously overrepresented, as are elite educational institutions in general (see N.Y. Times link). This educational elitism is not the mark of a great nation proud of its broad equality of opportunity for all. In addition, as the nation becomes more ethnically diverse, we may get more than one or two token ethnic justices with direct election.

Of course, this proposal, in spite of its logical basis, given the de facto law-making power of the Court and given the analogy with direct election of the Senate and of state supreme court justices, requires careful thought about whether this step should be taken at all.

Yet, the proposal is worth considering since the Supreme Court is really a small (and very political) legislative chamber in which law is made with a simple 5 to 4 majority vote. This proposal is simply a matter of legal and political realism: the Supreme Court makes law, just as the House and the Senate do.


(Image of Ivy League locations in public domain)