On Tuesday, Janet Protasiewicz defeated Dan Kelly for a seat on Wisconsin’s Supreme Court. At $42 million, it was the most expensive state Supreme Court race in our nation’s history. The outcome swings the Wisconsin court’s majority away from a textualism and originalist orientation and toward more purpose-driven or evolving readings of the law. It’s being described as a victory for progressives, since it’s the first time their preferred justices will have the majority since 2008 — just in time to address likely cases on abortion and gerrymandering. The election exposes continued electoral woes for the GOP, especially on the abortion issue.
Another broader problem exists, however. The election never should have happened. Not because of the outcome, which of course conservatives are lamenting. We shouldn’t make arguments about how we select our officials merely based on whether it will get our people in office here and now. Nor should the election not have occurred because it violated the U.S. Constitution. States may select their judges as they see fit. But they should not pick their judges through popular elections.
If states scuttled judicial elections, they would have the Constitution’s own practice for support. That document doesn’t allow for a popular vote to select any federal judges. Instead, the president nominates and the Senate confirms all district, circuit and Supreme Court judges. The Founders constructed federal judicial selection this way for good reason.
Our republic combines two principles of rule. The first concerns who rules — the people. The second pertains to how the people rule — through law. The Founders could’ve constructed a system in which the laws rule apart from, even contrary to, the people. Such a system would have violated our commitment to human equality and the consequent need for the consent of the governed.
The Founders also could’ve built a government in which the people ruled apart from law — by some system of decrees. Yet to make government effective and safe, we need these distinct principles of both popular rule and the rule of law. Rule only by law ends up in a systematized tyranny of elites. Rule by the people without law dives quickly into the tyranny of the majority and, eventually, anarchy.
With our system of separation of powers, all branches play some part in upholding the rule by the people and the rule of law. But they don’t uphold these two rules to the same degree or in the same manner. Congress and the presidency emphasize rule by the people. They both must follow the laws, constitutional and statutory, especially with the executive power’s role as law enforcement. But they also make laws, with Congress writing and passing, as well as the president signing or vetoing bills. And their ultimate power to legislate comes from the fact they are elected by the people: Laws passed by these two branches make the people’s will into binding rules.
The judiciary’s role places greater primacy on the rule of law. Judges don’t create law. They use the existing law as the standard by which to decide disputes. They have no part in making law and are to exercise, as Alexander Hamilton said in Federalist No. 78, “force nor will” but “merely judgment.” But in carrying out the will of the people by law, the judiciary affects how the people rule. The judiciary forces the people to only reward and punish, prescribe and proscribe, according to their own laws. That’s a good thing. The legislative process itself was set up to accentuate deliberation and care — not knee-jerk impulses. (Imagine laws made via Twitter.)
How can the judiciary effectively keep the people ruling according to their own laws? The Founders thought judges needed distance, if not outright independence, from any manifestation of popular will other than written constitutions and statutes. Along with longer tenures, executive nomination and legislative consent created some of that distance. So judicial elections undermine all of this. They tempt judges to promise and to decide in line with the people’s current opinion, even if such things run contrary to the written law. Doing so undermines the rule of law and thus invites the problems that accompany lawless rule by the people.
We can see these problems playing out in the Wisconsin race. Protasiewicz ran on an explicitly political platform. She made clear her positions on abortion and the state’s supposed gerrymandered election maps. Her opponent, Kelly, was less specific, but his own caustic candidacy was bolstered in its deficiencies by participating in the electoral process.
The result in Wisconsin was a bad one for the state and for the country. Not just because all indications are that Protasiewicz will be misguided and harmful in how she interprets and applies the law, but because the very process of her selection undermines the judiciary’s role in upholding the rule of law.
Yes, we need elections for the legislative and executive branches — but leave the judges out of it.
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ABOUT THE WRITER
Adam Carrington is an associate professor of politics at Hillsdale College in Michigan.
