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Is Ted Cruz Re-Election for Justices Approach Mistaken?


Does Ted Cruz really think that we can solve the problem of judicial tyranny with retention elections for Supreme Court Justices?

Or is the proposal just mistaken election cycle posturing?

You may think it unfair even to suggest that it’s just posturing. But Ted Cruz has reportedly been among those who, in the past, have accepted the self-evident lie that the judiciary reigns supreme when it comes to constitutional issues. Judicial supremacists say that once the Supreme Court pronounces its opinion, it must be accepted as law by the other branches of government. Of course this flies in the face of the principle, essential to the system of checks and balances, that the three branches are co-equal when it comes to their constitutional responsibility for the right use of their own allotted powers.

When it comes to defending against anti-Constitution abuses of power, however, the branches are not equal. Only Congress has the power to impeach and remove individuals guilty of such offenses from their positions in the other branches of government. Removal requires an exceptional mobilization of the will of the people, however. The Framers had sense enough to know that conviction by a simple majority would lead to terminal instability, easily exploitable by demagogues for tyrannical purposes. However, the U.S. House of Representatives can impeach (i.e., accuse someone of wrongdoing) with a simple majority vote. The Constitution obviously intends impeachment to be more frequent than conviction.

For years the lawyers’ guild has tried to pretend that impeachment/removal is some kind of legalistic process. But it is essentially a political act. Hamilton said as much in Federalist 65, expressing the common wisdom of the Founding era. Indeed, impeachment/removal is the ultimate expression of political sovereignty, especially when it comes to deposing the chief executive. If he has in fact accepted the notion of “judicial supremacy”, Ted Cruz has been one of the lawyers promoting this patently false legalistic understanding of impeachment. It leads to the notion that Justices can’t be impeached and removed for “political” reasons (as if “high crimes and misdemeanors”, involving abuse of otherwise unchallengeable sovereign powers, are not quintessentially political offenses.)

Now Senator Cruz proposes to treat the Judiciary as just another political office, in the gift of the majority of the people. But if we do so, which branch will speak for reason and the immutable premises of justice when the people are led by demagogues into a frenzied storm of passion? The opportunity to do so calls for a will largely independent of the preoccupation with popularity democratic elections necessarily entail. This is exactly why the Constitution removes Supreme Court Justices from the immediate effects of transient public feelings and opinions.

Now a majority of the Justices have handed down an opinion that arrogantly caters to a view popular, at the moment, with the majority of a powerful elitist faction. So Senator Cruz proposes an amendment to the Constitution likely to assure that, from now, on all Supreme Court Justices will be exposed to the political storm. He proposes to ignore the Framers’ wise regard for the independence of judgment that is a vital prerequisite of reasoned deliberation. Indeed, he goes to the extreme in the opposite direction. For if his proposal were to be adopted, it would certainly impel Justices of the Supreme Court toward subservience to the prevailing prejudices of the moment. Such subservience would be the mainstay of their longevity in office.

Acknowledging, as they must, that Congress already has the means to remove offending Justices, proponents of the Cruz proposal will point out that those means have proven useless. The political will required to make them effective is chronically absent. But if Senator Cruz has up to now accepted the doctrine of judicial supremacy, then he has helped promote the mistaken view that largely contributes to this chronic deficiency. Now, jumping to the other extreme, he proposes to undermine the Federal Judiciary’s ability to resist unreasonable whims of political passion.

Given what I learn from my particular heritage as an American, I have to oppose this result. For it was thanks to the independence of the Federal Courts that the movement to end unjustly legalized racial segregation and discrimination scored its first victories. Those efforts contributed to the examination of conscience that ultimately led the nation to repudiate legalized racial injustice. Now, the Federal Courts are now being abused to discard the principles of God-endowed right that made that victory for justice possible. This they do against the will of the majority of the people, but in line with the ruthless bias of the most powerful money and media elites in the United States.

Using their power advantage, this power-mad elitist clique has hijacked the political process, turning it into a sham that suppresses true representation of the people. Therefore, the effort to adopt Cruz’s proposed Constitutional amendment will take place in the context of a nationalized political process hijacked by the elitist faction. This would be true regardless of which constitutionally prescribed method for amending the Constitution is followed. In fact, the Supreme Court’s recent decision in the Arizona legislature v. Arizona redistricting commission case opens the door for the elitist faction to push, in susceptible states, for an approach that substitutes the word “referendum” for the word “legislature” in Article V. This a shift that is likely to add to the elitist faction’s advantage of power.

Ted Cruz knows better than most that the party to which he still adheres is in the grip of forces that have no interest in representing the good people of the United States. He knows that they now arrogantly disdain their constituents’ allegiance to America’s founding principles, and the Constitution based on them. Why does he nonetheless refuse to repudiate that Party? Instead of feeding the delusion that it offers any hope for liberty’s survival, why doesn’t he courageously oppose that lie? Why doesn’t he join the Americans who have rejected it? They are now seeking to restore the constitutional way of doing politics, to replace the demagogic sham that now aims to establish permanent oligarchic tyranny over the people of the United States. Why won’t Cruz follow the lead of the people he claims to represent?

As for the Supreme Court’s latest travesty, many of the good people Ted Cruz and others say they represent are demanding that the House of Representatives start impeachment proceedings against the Justices directly responsible for the Obergefell decision. This is a step that can be taken right now, using the majority the people handed to the GOP in 2014. Properly handled, the impeachment process would educate and rouse people against the specter of judicial treason, mobilizing them for action against the bid for permanent elitist faction tyranny it serves.

Given that this is so, the proposal Senator Cruz has made could be mistaken for an attempt to focus precious time and energy on a process the elitist faction are already positioned to overtake.


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