A Look at Our Judicial System

Guest Opinion

By Stewart MacLeod | July 27, 2024

Looking at today’s federal government, one of the major issues that we need to address is the judicial branch. Fixing what is awry in the judiciary may take some doing, especially given the separation of governmental powers. “Physician, heal thyself.” But how do we make that happen in our judiciary?

First we should look at three major problems and then address some possible fixes: 1) How and where cases are distributed in order to achieve a desired result; 2) How the history of our founding and the intent of our Founding Fathers is being misrepresented; and 3) The lack of a true judicial code of ethics for the Supreme Court.

Picking where a lawsuit should be filed based solely on what ruling you want is known as “judge-mandering” and is just wrong. Proponents seek a favorably leaning judge whose ruling could have national implications, and sometimes a lone judge rather than a multi-judge panel. This has been explained by Justice Barrett as “looking out over the crowd for his friends,” in order to get the court or judge one wants.

The next problem comes with picking and choosing from history to support a particular view, known as “the history and tradition test.” And then there is Originalism. Both misinterpret the Constitution and what our founders actually said and meant by their words.

Then, there is “textualism,” which means ruling based solely on the words in the Constitution. This problem was addressed by Justice Jackson, who, in a recent dissent, noted that the Constitution’s framers’ intent needs to be considered as well as the wording. This was apparent in the recent dissent to a ruling allowing bump stocks to be sold. As Justice Sotomayor so aptly wrote in her dissent, “If it quacks like a duck and looks like a duck, it is a duck”—in this case a machine gun, which is banned by a federal statute.

As has been made obvious by recent news stories, Supreme Court judicial ethics have also become a big problem. There should be a written moral code by which all judges and justices should have to abide.

For example, the two flags flown at Justice Alito’s two residences are inexcusable. Even if it was his wife who did it, he should have known how it would look for him as a justice. Also, Justice Thomas should be recusing himself from any arguments related to Jan. 6 so there is no hint of partisanship in his ruling due to his wife’s involvement.

Similarly, accepting very valuable favors and gifts not only looks bad, but also could influence decisions. This is especially true when the bestower of the gifts and favors has something coming before the court. No signs of partisanship or taint on how a justice will rule should be allowed.

One final thought on problems with our judicial system, involves the issue of term limits. If the age of a presidential candidate can be an issue, why is not the same true for judges and justices?

Yes, many people function well into old age, but rather than expecting that to be the case, why not a mandatory retirement age for a judge or justice? Also, just as our Constitution and laws are living items that can and have been changed, maybe new blood in our judicial system is warranted once in a while—with term limits.

So how do we address all of this? First, within the judicial branch itself so that the separation of powers can be maintained, there should be a supreme oversight body to keep watch and make sure all is morally ethical and truly impartial. There is more than enough partiality and moral lapse infecting our legislature; it has no place in the judiciary.

Another fix is to change how judges and justices get their jobs. They should not be beholden to one president or legislative side that seeks a certain slant in the judiciary. Therefore, here are ideas that would give us a fair, nonpartisan judicial system:

- Have a bipartisan committee (the Federalist Society is not bipartisan) of legal scholars suggest candidates for the Supreme and federal courts to the President.
- Vet these names through a bipartisan American Bar Association group to ensure both that candidates have legal knowledge and constitutional understanding, as well as valid time as a trial lawyer, especially before federal courts.
- The President then gets to appoint them, but only from such a list of suggested names.
- The Senate cannot hold up an appointment, as was done with Merrick Garland.
- Return to a two-thirds approval vote in the Senate, no simple majority.

I realize the changes I suggest would have trouble being agreed to by Congress and ratified by enough states to become law. Yet changes are needed for the benefit of all citizens in our land as well as for our democracy itself.

Stewart MacLeod earned a BA in History at Albion College and an MA in Ottoman History at the University of Michigan. He then spent 30+ years as a Turkey area analyst for the U.S. government before retiring to Traverse City.