What Does Alexis de Tocqueville Tell us About Ruth Bader Ginsburg?

 

So, what do we say in the face of this new development -- the passing of Ruth Bader Ginsburg?  Clearly it has raised the stakes of the election, as if those stakes were not high enough already.  Donald Trump won the last election in large part because enough people thought it worth the risk of such an unorthodox candidate to have a Republican appoint the next Justice to the Supreme Court.

I would turn for guidance, as I am wont to do, to Alexis de Tocqueville's Democracy in America.  Tocqueville warns that making the chief executive elective invites regular crisis:

Whatever the prerogatives of the executive power may be, the period which immediately precedes an election and the moment of its duration must always be considered as a national crisis, which is perilous in proportion to the internal embarrassments and the external dangers of the country. Few of the nations of Europe could escape the calamities of anarchy or of conquest every time they might have to elect a new sovereign. In America society is so constituted that it can stand without assistance upon its own basis; nothing is to be feared from the pressure of external dangers, and the election of the President is a cause of agitation, but not of ruin.  

 What form does this crisis take?

For a long while before the appointed time is at hand the election becomes the most important and the all-engrossing topic of discussion. The ardor of faction is redoubled; and all the artificial passions which the imagination can create in the bosom of a happy and peaceful land are agitated and brought to light. The President, on the other hand, is absorbed by the cares of self- defence. He no longer governs for the interest of the State, but for that of his re-election; he does homage to the majority, and instead of checking its passions, as his duty commands him to do, he frequently courts its worst caprices. As the election draws near, the activity of intrigue and the agitation of the populace increase; the citizens are divided into hostile camps, each of which assumes the name of its favorite candidate; the whole nation glows with feverish excitement; the election is the daily theme of the public papers, the subject of private conversation, the end of every thought and every action, the sole interest of the present.

There is simply no denying that this is a danger of elective government.  Tocqueville goes on to reassure us that once the election is over, everything calms down to the point that one wonders what the excitement was about.  The commentator in my translation remarks that this is not always true, notably in the case of Lincoln.  (Tocqueville wrote in the early 1830's, before slavery became the great issue of the day).  

Tocqueville also notes that the crisis of elections is reduced by making them frequent because less is at stake:

When elections recur at long intervals the State is exposed to violent agitation every time they take place. Parties exert themselves to the utmost in order to gain a prize which is so rarely within their reach; and as the evil is almost irremediable for the candidates who fail, the consequences of their disappointed ambition may prove most disastrous; if, on the other hand, the legal struggle can be repeated within a short space of time, the defeated parties take patience. When elections occur frequently, their recurrence keeps society in a perpetual state of feverish excitement, and imparts a continual instability to public affairs. Thus, on the one hand the State is exposed to the perils of a revolution, on the other to perpetual mutability; the former system threatens the very existence of the Government, the latter is an obstacle to all steady and consistent policy. The Americans have preferred the second of these evils to the first; but they were led to this conclusion by their instinct much more than by their reason; for a taste for variety is one of the characteristic passions of democracy.

Tocqueville goes on to deplore the mutability of U.S. laws and lack of steady administration.   That is no longer our problem.  In these days of extreme polarization and multiple veto points, our problem is just the opposite -- the system has become so rigid that it is almost impossible to pass important legislation of any kind.  

And we have moved closer to the perils of infrequent elections, i.e., people no longer believe that if they lose the election, they can live to fight another day.  One of the major reasons is that lifetime federal court appointments are at stake.  Parties may "exert themselves to the utmost in order to gain a prize which is so rarely within their reach" -- not the Presidency, but a majority on the Supreme Court.  And the loss of that majority may seem "almost irremediable."

Today, Democrats are playing with two options -- expanding the court to eleven members, or limiting Supreme Court justices to long (typically 16 years) and staggered, but fixed terms.  

The former option is clearly constitutional, but clearly seen as radical. The last time anyone attempted it was Franklin Delano Roosevelt, who proposed to expand the Supreme Court from nine members to fifteen.  He met with immediate, intense pushback and backed down.  Maybe such an expansion would been seen as legitimate this time, and maybe not.  The obvious weakness, though, is that it invites retaliation.  If Democrats can raise the number of Supreme Court Justices to eleven, then why won't Republicans, next time they are in power, raise the number to thirteen.  This invites an endless cycle.

The latter option is more radical by far and constitutionally dubious, but offers the possibility of turning down the temperature.  The Constitution says, "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."  Does this require Supreme Court justices to sit on the bench for life (or at least until death, retirement, resignation, or impeachment)?  Or does it merely require Supreme Court justices to hold some sort of federal judgeship for life, and allow demotion to, say, an Court of Appeals?  I am inclined to think this would have to go before the Supreme Court, which would have an obvious conflict of interest in deciding it.  There would also be the question of the status of current Justices, and how to stagger appointments.  Nonetheless, if we knew each President would have the opportunity to appoint a fixed number of judges to fixed terms, it would lower the stakes in elections.  It would also remove the incentive to appoint the youngest judges feasible, and for judges to leave only in the term of a President or their party, or in a coffin.