As the Supreme Court meets to hear oral argument in Caperton v. Massey case, the New York Times and the Washington Post call their readers’ attention to the stakes.  “Justice for Sale?” is how the Post titles its editorial. To this, the Times s answers “Justice Not For Sale”, meaning, really, that it believes that justice in judicial elections is too often up for sale and should not be.  It is characteristic of the Post that it notes the complexities of the issues, while the Times sees none.  Both agree, however, that funds spent for or received by a judge do bear on litigant due process.

    Caperton is before the Court and therefore noticed.  The press has been more sparing on more radical court reform now on offer—a plan, supported by prominent legal scholars, for reforming the Supreme Court.  The centerpiece is a term limit on active service—no more than eighteen years—and the term of a Chief Justice would also be limited, to seven years.  Other elements include shared Court responsibility, with a new division or court of appellate judges, for deciding which cases are heard.

     For all its merit, this proposal has been received so far only respectfully, given its due as a meritorious idea but discounted as practical reform that should absorb real energies anytime soon.  There is a lesson to be dug out of the differences in the view taken of judicial reform priorities—the difference between the hand-wringing over judicial elections and the deferential acceptance of the status quo in the appointments to and operation of the Supreme Court. 

     True, judicial campaign finance can be advertised as a systemic ill, cutting across states and courts.  Moreover, the terms in which it is discussed are conveniently familiar:  money and its corruptive effect, negative campaigning, the distractions and sinister pressures of fundraising. 

     But this explains and not does excuse:  something else is holding up serious, sustained attention to Supreme Court reform.  A clue to the sources of this disinclination can be found in a recent posting by Dahlia Lithwick on Slate, entitled “Lest Ye Be Judged” and reviewing our experience with “out of control” judges.

     Lithwick begins with cases of misconduct, proceeds to a discussion of Caperton and mentions along the way the Supreme Court reform proposal.  Out of all these disparate examples, she fashions this question:  “Why do we give our judges such extraordinary power over our lives and then leave them to police themselves, until and unless they break the law in hideous ways?”

     Hardly has she asked the question, then she answers it, by putting the blame largely on those asking the question.  We can never know, she argues, when the complaints are genuine or simply convey the frustrations of the losing side.  And more:

If we create too many systems for micromanaging the judiciary, we are really saying that we trust their judgment only when they agree with us. We need to separate the real problems of policing judicial misconduct from the generalized grousing that if judges don't agree with us on everything it must be because they are old, elitist, corrupt, or out-of-touch. And in the end, to paraphrase Scalia, we must either trust in our judges to judge, or do away with this institution altogether.

     This last sentence says it all:  according to Lithwick, the judiciary cannot function without such a high level of trust that, in its absence, the courts might as well be folded away and dispensed with. 

     The truth seems to be that we are uneasy about challenging the judiciary to a better standard of performance or undertaking major reforms of even our highest court on the impressive record, developed over a long span of experience, that reform is needed.  As Lithwick admits, critics are called out for showing inadequate regard for “judicial independence”.  This was a favorite rejoinder of Justice Sandra Day O’Connor, its effect being to lump together term limit proponents with the crazed impeachment crusades against Supreme Court Justices reviled for specific decisions.

     This is an unhealthy state of affairs, stalling out all debate over reforms of powerful institutions taking an immodestly large role in the nation’s political life.  The Supreme Court should indeed specify due process standards to govern the recusal of state court judges who hear cases affecting campaign supporters.  But not all problems with the judiciary, federal or state, stem from the manner of their selection, and not all reform should end there. 

Bob Bauer