The two principal differences between most, if not all, state constitutions and the federal Constitution concern the method of selection of attorneys general and judges, and the tenure of judges. The fact that state attorneys general are typically elected by the voters, whereas the US attorney general is an appointed member of the president’s cabinet, illuminates the scope of the federal executive’s power.
In my judgment, however, while that is an interesting comparison, it does not rise to the level of a criticism that merits changing our federal Constitution. As for the difference between state election of judges and the federal guarantee of life tenure, I firmly believe that the federal rule is by far the wiser one. The point is illustrated by the recent decision of the Iowa electorate to remove state supreme court justices who had concluded that a state statute prohibiting same-sex marriage violated the state constitution.3 Disciplining judges for making an unpopular decision can only undermine their duty to apply the law impartially. Indeed, as Sir Matthew Hale, a respected English judge, explained centuries ago, the duty to be impartial and to be indifferent to popularity is an essential attribute of the judicial office.4
While the guarantee of life tenure protects the interest in the impartiality of federal judges, Levinson correctly argues that one consequence of vesting the judicial appointment power in the president is to create a Supreme Court that is less “professional” and less diverse than comparable courts elsewhere. Most foreign systems limit the discretion of the appointing authorities. For example, in Belgium, half of the constitutional court must be former legislators; and in Canada, three of the nine justices must come from Quebec. It has been customary in France and Ireland that at least one of the judges should be a non-Catholic—as for much of the last century it was customary for at least one Supreme Court justice to be Jewish.
Today all members of the United States Supreme Court are either Catholics or Jews, and Anthony Kennedy is the only justice who lived west of the Mississippi at the time of his appointment; but all received their legal training at Harvard, Yale, or Columbia, and he is no exception, having attended Harvard Law School. More diversity in the background of the justices would unquestionably be desirable, but will likely occur in time without any amendment to the Constitution.
Levinson identifies three different possible justifications for giving judges the authority to provide the final answers to questions about the meaning of the “Constitution of Conversation”: first, that they are experts in the law in the same way that rocket scientists have a field of expertise; second, that they are gifted with exceptional wisdom; or third, that the terms of their office liberate them from “political” constraints. He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider. He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.” While he concludes that the third answer depends on one’s views about the empirical consequences of election of judges, in my judgment, he accurately identifies the controlling criterion in this sentence: “Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”
Instead of reading like a brief in support of Levinson’s conclusions, Framed is a series of thoughtful and interesting essays discussing strengths and weaknesses of various structures established by our Constitution. The book offers an enlightening comparison of those structures with those adopted by states and foreign governments in dealing with similar issues. Many may disagree with Levinson’s arguments, but they will have to think hard about why they disagree. His book is well worth reading.