As the Merrick Garland and Brett Kavanaugh controversies have shown, the United States Senate has become too dysfunctional to perform its constitutional role in the confirmation of Supreme Court Justices. It now seems likely that the Senate will never again confirm a Supreme Court nominee put forward by a president of the opposite party. Given that the presidency and the Senate have been controlled by different parties exactly half of the time since 1955, the country faces a potential constitutional gridlock in each election cycle.
The democratic way to cut this Gordian knot is to let the electorate decide who gets to sit on the Supreme Court. The 28th Amendment proposed below provides for the popular election of Supreme Court Justices to strictly limited terms of twelve years. The election of three new Justices every four years will ensure continuity on the Court while keeping its Justices in touch with the electorate. It will end the ridiculous game of Russian roulette through which the political composition of the Court is determined by when each individual Justice just happens to retire or perish.
Holding Supreme Court elections to coincide with the midterm congressional elections would bring people out to vote in those non-presidential election years, when turnout now is usually one-third lower than in presidential elections.
The 28th Amendment proposed below includes a novel feature to safeguard against wild swings in judicial politics: a “pick two out of three” electoral system. In this system, each voter would have the opportunity to vote for two Justices, with the top three vote-getters winning seats on the Court. Mathematically, each major party would have a strong incentive to run just two candidates, in order to avoid splitting their votes.
Unless there is a very popular third party candidate on the ticket, the Democrats and Republicans would split the three seats at each election either 2–1 or 1–2. That would provide additional stability to the system, and better reflect the diversity of the country than a pure winner-take-all system. Think of that third Justice as a kind of consolation prize to vouchsafe the minority party at least some representation on the Court.
The transition from the current chaotic system to an orderly electoral system could easily be accomplished over a period of twelve years (three election cycles), and the proposed amendment includes a clear transition mechanism to put this into action.
The reality is that the big issues decided by the Supreme Court—abortion, affirmative action, gay rights, gun rights, speech rights—are fundamentally political issues. In the wake of the Garland and Kavanaugh debacles, it is ridiculous to argue that the Supreme Court should be above politics. We elect the Congress that makes our laws and the president who enforces them. We the People should take back the power to elect the Supreme Court that interprets them, too. The 28th Amendment to the Constitution of the United States proposed here is a practical way forward toward an ever more democratic America.
Amendment XXVIII—popular election of Supreme Court Justices
Section 1. The Supreme Court of the United States shall be composed of nine Justices, who shall select from among their own number one Justice to serve as Chief Justice, according to such procedures as shall be determined by Law.
Section 2. The Justices of the Supreme Court shall be elected by a popular vote of the People of the United States, with three Justices elected in each fourth year to a term of twelve years. No person who has ever served as a Justice of the Supreme Court may be elected to the Supreme Court. Supreme Court elections shall be held concurrently with Congressional elections in those years in which a President is not to be elected. The Electors in each State shall have the qualifications requisite for Electors of the most numerous branch of the State Legislature. Each Elector shall be given the opportunity to vote for two Justices. The three candidates who receive the largest numbers of votes shall be elected Justices of the Supreme Court. The terms of Supreme Court Justices shall begin and end concurrently with those of United States Senators. The United States Senate shall be the Judge of the elections, returns, and qualifications of the Justices of the Supreme Court.
Section 3. When a Vacancy occurs among the Justices of the Supreme Court, the President of the United States shall appoint a Justice to fill the Vacancy with the advice and consent of the Senate, in accordance with the procedures set forth in Article II, Section 2, paragraphs 2 and 3 of this Constitution. The Justice so appointed will fill out the remainder of the term of the Justice whose departure from the Court prompted the Vacancy, except in the case of Vacancies that may happen during the recess of the Senate, in which cases the appointment will expire at the End of the Senate's next session.
Section 4. Justices of the Supreme Court shall be shall be removed from office on Impeachment in manner specified in this Constitution for the Impeachment of civil Officers of the United States.
Section 5. Upon ratification of this Amendment, the terms of all currently serving Supreme Court Justices shall be commuted with immediate effect in order to facilitate the orderly introduction of an elected Supreme Court over a course of three successive Supreme Court elections. The terms of the three longest-serving Justices shall end at the beginning of the terms of the first set, the terms of the next three longest-serving Justices shall end at the beginning of the terms of the second set, and the terms of the next three longest-serving Justices shall end at the beginning of the terms of the final set of three Justices elected under the provisions of this Amendment. The terms of any Supreme Court Justices junior to the nine longest-serving Justices shall end immediately upon the ratification of this Amendment.
Salvatore Babones is the author of The New Authoritarianism: Trump, Populism, and the Tyranny of Experts.