Ted Cruz Wants to Be Able to Oust Supreme Court Justices

Molly Riley/AP

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


Ted Cruz is plowing ahead with an effort to subject Supreme Court justices to elections, tapping into conservative anger toward the court after last month’s rulings preserving the Affordable Care Act and making same-sex marriage legal nationwide.

After calling publicly for retention elections for the justices, the senator from Texas and Republican presidential candidate convened a Senate hearing on Wednesday to discuss “possible solutions” to the Supreme Court’s “activism.”

“This past term, the court crossed a line, continued its long descent into lawlessness to a level that I believe demands action,” a dour Cruz said in his opening statement at the hearing of a Senate Judiciary Committee subpanel. “Five unelected lawyers have declared themselves the rulers of 320 million Americans.”

Two of the three witnesses agreed that the court had overstepped its bounds. Ed Whelan, a former Justice Department official and legal blogger at the conservative National Review, said the gay marriage opinion, Obergefell v. Hodges, “is rivaled in Supreme Court history only by Dred Scott v. Sandford,” the decision that helped catalyze the Civil War, and Roe v. Wade, which recognized a woman’s right to an abortion.

In response, Cruz said he supported proposals for term limits for Supreme Court justices, in addition to his own proposal to subject Supreme Court justices to retention elections.

Cruz’s retention election proposal received praise from one of the witnesses, John Eastman, a conservative scholar at Chapman University School of Law in California and board chairman of the National Organization for Marriage, a group that has fought bitterly to keep same-sex marriage illegal. (Eastman once equated homosexuality with “barbarism.”) Eastman suggested two additional constitutional amendments to limit, as he put it, “judicial tyranny”: Give a majority of states the power to override “an erroneous decision” of the court, and allow Congress to veto Supreme Court rulings by a two-thirds majority vote in both houses.

Although liberals fared well in the Supreme Court’s recent rulings, they often find themselves in agreement with Cruz’s position on term limits. The one liberal witness at the hearing, Neil Siegel, a constitutional expert at Duke Law School and former Senate Judiciary Committee counsel to then-Sen. Joe Biden, said he supported term limits. (He’s not the only prominent liberal legal scholar to do so.) Eastman, by contrast, said term limits wouldn’t save the court from a parade of activist judges, while Whelan didn’t take a position.

“I’ve become persuaded as a matter of constitutional design I think [term limits are] a good idea,” Siegel said Wednesday. “People are appointed in their forties. They can stay there till their nineties. I think nomination and confirmation is a way that over time we ensure democratic accountability. … I think regular changeover on the court, like an 18-year term, might be a very good idea and worth serious consideration.”

This is not the first time that politicians or scholars have proposed reigning in the lifetime appointment of Supreme Court justices. A recent poll found that two-thirds of Americans would support term limits for the court. But any such changes would likely require a politically difficult constitutional amendment, given that the Constitution says justices “shall hold their offices during good behavior”—generally interpreted to mean as long as they like, unless they’re impeached and removed from office.

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate