Written by: Jerry Yan, PO ’18
From day one, lawyers have fundamentally reshaped American political discourse. Countless lawyers have been elected judges, and lawsuits have reformed prisons, struck down abortion laws, decided elections, and forced a president to resign. In Democracy in America, Alexis de Tocqueville argues that lawyers should play fundamental role in shaping American politics. He argues that lawyers, and especially judges, should naturally become the politically dominant class in the United States and serve as a balancing force against the whims of the majority. Today, the majority of States use some form of election to determine who is vested with the power “to say what the law is.”[1] Tocqueville was hardly the biggest supporter of such a scheme, writing that:
I dare to predict that sooner or later these innovations will have dire results and that one day it will be perceived that by so diminishing the independence of the magistrates, not only has the judicial power been attacked, but the democratic republic itself.[2]
Tocqueville essentially makes two claims: first, that judicial elections attack the judiciary by diminishing its independence, and second, that judicial elections, somewhat ironically, weaken a democratic government. While exposing the judiciary to the democratic process does diminish the strength of the judiciary, it does not necessarily follow that exposing the courts to the democratic process undermines a democratic government.
Madison discussed the separation of powers in “The Federalist No. 51,” writing that “it is evident that each department should have a will of its own” as it is “essential to the preservation of liberty.”[3] Even so, Madison cautioned that each branch cannot be entirely independent of the others. It is easy to imagine, at least in theory, a completely autonomous judicial system: judges appoint new judges, appropriate funds, read laws whichever way they so choose, and, just for good measure, command a standing army. In such a system, the judicial power is at its height for it has subsumed both the power of the purse and the power of the sword. As both Tocqueville and Madison observed, the power of any one branch of government, including the judiciary, lies in its independence. To then make the judiciary beholden to any other entity, whether it be another branch of government or the people itself, is to weaken the judiciary’s source of power. Judicial elections do just that: they hold judges directly accountable to the people. In doing so, elections diminish the judiciary’s independence and erode its power.
Elections, however, do more than make judges accountable to the people. They make judges dependent on the people. In Tocqueville’s eyes, this is a reversal of the proper social order. As he explains, people should be dependent on lawyers. He argues that the common law is beyond the layperson’s comprehension, that lawyers in the United States are like “the priests of Egypt” for they serve as “the lone interpreter[s] of an occult science.”[4] Tocqueville’s allusion to the priests of Egypt associates lawyers with the supernatural, suggesting that their position is so unimpeachable that no layperson could ever hope to subject a lawyer to her will. To be sure, a lawyer running for or occupying a position in the legislature is beholden to the people and subject to their will. But as far as judicial matters are concerned, lawyers reign supreme in Tocqueville’s conception of American society. To Tocqueville, a judge’s authority to interpret and apply the law is implicit in her knowledge of the law. It is easy then, to understand why Tocqueville would be so contemptuous of a system where a judge’s authority comes from the people who are so far beneath her.
Tocqueville then went on to claim that this affront to the judiciary weakens a democratic government. He largely substantiates this point on a theoretical level, arguing that a democratic government can only exist when lawyers act as a powerful anti-democratic force that counterbalances “democratic spirit.”[5] Tocqueville argues that:
without this mixture of the spirit of the lawyer with the democratic spirit, however, I doubt that democracy could long govern society, and I cannot believe that in our day a republic could hope to preserve its existence if the influence of lawyers in its affairs did not grow in proportion with the power of the people.[6]
In Tocqueville’s eyes, a strong, successful democratic government is dependent on the combination of two forces: anti-democratic pressure and democratic spirit, which are themselves polar opposites and thus inherently incompatible. Weakening either weakens the whole, and to make judges beholden to the people and diminish the judiciary’s ability to act as an anti-democratic check on the people is to weaken the foundations of democratic government. Judges are supposed to be devoid of democratic spirit, not defined by it.
However, this conception of a democratic government is flawed, because a judicial system entirely devoid of democratic spirit is one that is unmoored from the people. A system like that, such as the one described earlier, is anathema to preserving liberty and upholding democratic values. Just as judges must temper the whims of the majority, so must the whims of the majority temper judges. A judge with the unchecked ability to strike down laws with impunity and craft new laws is to allow anti-democratic forces to triumph over democratic spirit. Tocqueville notes that the courts “are the most visible organs used by the body of lawyers to act on democracy.”[7] By opening the judiciary to the people, courts also become the most visible organs for democracy to act on the body of lawyers. Tocqueville argues that a functional democratic government is the product of a balance between lawyers and democratic spirit, but such a balance is only achievable when both sides check the other. Judicial elections are the most direct means for doing so. Subjecting judges to the democratic process does not weaken the whole; rather, it facilitates the balance that Tocqueville advocates for and, in doing so, makes the whole greater than the sum of its parts.
That is not to say that judicial elections are the best means of giving the people an opportunity to check lawyers. Setting aside Tocqueville’s theoretical arguments, there are practical considerations that weigh heavily against judicial elections. For one, campaign expenditures have skyrocketed and are likely to continue to do so in the aftermath of Citizens United v. FEC and McCutcheon v. FEC, raising strong concerns about the possibility of judicial corruption.[8] Moreover, expenditures are not always easily identifiable. 75% of total expenditures in the 2012 Michigan State Supreme Court elections were from unidentified sources.[9] This uncertainty raises a substantial possibility that parties outside of Michigan are influencing the elections and undermining the cornerstone of a democratic government: that a government derives its legitimacy from the people it governs. Moreover, research has shown that criminal sentences get more severe in an election year, and that elections may encourage partisanship.[10] These practical concerns suggest that judicial elections are a flawed means of checking lawyers.
To be sure, many of these are practical considerations with practical solutions. Setting aside the First Amendment, Buckley v. Valeo, and Buckley’s progeny, close regulation of judicial elections could resolve many of these concerns. Private campaign financing could be replaced with public financing and independent expenditures by persons or organizations banned. Judges could be barred from declaring a party affiliation and political parties could be barred from endorsing candidates. However, no amount of regulation can change the fact that judicial elections are, by definition, inherently political. It would be extremely difficult, if not impossible, to prevent judges from pandering to the electorate by adopting “tough on crime” or “malice towards none, charity to all” stances when executing their official duties.
The other extreme, judicial appointment, is hardly any better than judicial election. Although the nominee is not put directly before the electorate, the intense politicization of nomination proceedings, especially high profile nominations, means that she is effectively being put in front of voters via advocacy groups and any members of the legislature that may be involved. Many of the same problems with judicial elections then carry over to judicial nominations as well. Some kind of compromise between the two is necessary: one that gives the people the opportunity to check the judiciary without tempting judges to pander to the people. Designing such a perfect system may well be an impossible task, but there are some possible systems that certainly offer an improvement in both respects. One such system is a hybrid system with an independent nomination commission and retention elections. Such a system would give the people some degree of control over the judiciary both through the retention elections and the nomination commission. Additionally, there is less incentive for judges to pander and spend extensively in a retention election because there is no opponent to defeat.
Again, no system will ever be perfect. For example, retention elections still create an incentive for judges to pander, regardless of how reduced it may be. But to cut out the incentive to pander is to cut out the people the judiciary serves. A judicial system independent of the people is a flawed judicial system. As Tocqueville argued, a democratic government is dependent, at least in part, on the interplay between the judiciary and the people. That interplay may weaken both the judiciary and the people when both are viewed as separate entities, but when the two are put back together their mutual checks and balances strengthen the whole. A democratic government is stronger when judges and the people check each other and weaker when they do not.
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[1] Marbury v. Madison
[2] Tocqueville, Alexis. Democracy in America. Chapter vol. I pt. 2 chapter 8 “On What Tempers the Tyranny of the Majority in the United States”
[3] “The Federalist No. 51”
[4] Tocqueville, Id.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Schwartz, “Judicial Elections Unhinged,” New York Times Editorial Staff, “Effort Begun to End Voting for Judges”
[9] Schwartz, Id.
[10] John Oliver, “Elected Judges”
