The Senate Shouldn't Select SCOTUS

America’s founders created the House of Representatives to give the people a voice in the federal government. Seats in the House are allocated proportionally, and representatives are elected frequently to ensure accountability to the electorate. That said, the founders showed little confidence in the House’s ability to govern responsibly. Madison wrote in the Federalist #62 that such a body would be unstable due to the electorate’s “sudden and violent passions.”

The Senate was presented as a stabilizing force. Unlike representatives, senators were to be professional politicians, insulated from the electorate by indirect1 and infrequent elections. More than one founder considered that the Senate might resemble a hereditary aristocracy. Dickinson suggested that senators be “distinguished for their rank in life and their weight of property.” Madison wrote in Federalist #63 that, because the Senate couldn’t enact laws on its own, at least it would not become a tyrannical aristocracy.

Two centuries later, the Senate still has an aristocratic feel to it. Compared to the House, it’s half as diverse and twice as wealthy2. Such a highly-enfranchised body is well-equipped to navigate conflicts between states or ratify international treaties; voters (and their representatives in the House) are unlikely to have expertise in matters so far removed from day-to-day life. But, by the same token, the Senate is uniquely ill-equipped for the consideration of civil rights. When evaluating the complaints of the powerless against the abuses of the powerful, a room full of aristocrats is not impartial.

The Senate’s bias against civil rights is famously evident in the history of the filibuster. The Senate held out for two decades in defense of the poll tax. Anti-lynching3 legislation was blocked completely. But – as bad as the filibuster has been for civil rights – the Senate’s power over the judiciary is worse. A filibuster can be broken, and can’t touch existing laws. Federal judges, on the other hand, have the power to reinterpret and strike down laws, even decades later. And federal judges, including the justices of the Supreme Court, are appointed by the Senate. The House has no input.

Courts aren’t universally opposed to civil rights, of course. Landmark rulings have gone both ways. But, on balance, federal judges (like the Senate that appoints them) are inclined to side with the powerful. All four of the worst4 Supreme Court decisions in history relate to civil rights. And in each case, the court erred on the side of the powerful, endorsing horrific abuse of the disenfranchised:

  • In Dred Scott v Sandford (1857), SCOTUS voted 7-2 that persons of African descent cannot be US citizens, and thus have no standing to sue in federal court. This decision stripped rights from the half-million free Blacks in the US at the time.
  • In Plessy v Ferguson (1896), they voted 7-1 to endorse the doctrine of “separate but equal,” opening the door to racially segregated housing, schooling, and transportation. Millions were affected throughout the 20th century.
  • In Buck v Bell (1927), SCOTUS voted 8-1 to allow forced sterilization of the “feeble minded” and “promiscuous”. State laws resulted in the surgical sterilization of over 60k Americans, and disproportionately women of color.
  • In Korematsu v US (1944), SCOTUS voted 6-3 to allow FDR’s incarceration of Japanese Americans, including US citizens, for the duration of WWII. Over 100k people were forcibly relocated, robbed of their homes and businesses.

It’s tempting to blame America’s founders for giving a chamber of aristocrats so much influence over the rights of the powerless – but that’s not quite fair. The founders couldn’t have anticipated the importance of the courts as a vehicle for civil rights. Slavery was a divisive issue at the time, but it was addressed by Congress through the lens of states rights rather than individual rights5. The Reconstruction Amendments following the Civil War turned that paradigm on its head. They established the federal government’s constitutional responsibility to ensure the rights of its citizens, even if their state would rather see them disenfranchised. Along with the principle of judicial review, as established in Marbury v Madison (1803), these amendments demanded that federal courts strike down discriminatory executive orders and acts of Congress. Since then, landmark rulings like Plessy v Ferguson (1896) and Brown v Board (1954) have carried just as much weight as any act of Congress.

That is, the Senate’s disproportionate influence on civil rights, exercised through the courts, is an unhappy accident of history. Elites in the Senate are well-suited to consider disputes between businesses, states, and nations – and to select judges to do the same. But the Constitution now demands judges concern themselves with discrimination and disenfranchisement as well. As America’s aristocracy, the Senate undervalues the perspective of the powerless. It’s perverse to infect the federal courts with that same bias.

  1. Senators have been directly elected since the 17th Amendment in 1913. They are still insulated from electorate by six-year terms. In fact, senators now serve longer on average than they did before the 17th Amendment. 

  2. The Senate is 10% nonwhite, compared to 22% for the House and 38% for the US overall. The median senator’s net worth is about $1M, compared to $400k for the median representative in the House. 

  3. During Jim Crow, brutal killings were used to intimidate African Americans from voting. Local authorities turned a blind eye. The House passed a bill making lynching a federal crime, but it was halted in the Senate. 

  4. “Worst” is subjective, but there seems to be widespread agreement that these four are at the top of the list. 

  5. See, for example, the Missouri Compromise (1820) and the Kansas-Nebraska Act (1854). 

© Charles Fyfe 2020 under CC-BY