“It is not a great privilege to name a Supreme Court justice.”
Tune in to your local public radio or join the 1776 Club to hear this episode of What Would Thomas Jefferson Do?
The following is a rush transcript.
David: 00:00 Good day citizens and welcome to What Would Jefferson Do? Our weekly opportunity to discuss current American events with President Thomas Jefferson who is seated across from me now, and good day to you, Mr. President.
Jefferson: 00:00 Good day to you, citizen.
David: 00:17 Mr Jefferson, our current president recently said that the most important decision a president can make if he's lucky enough, is that of selecting an appointment for the supreme court. How would you feel about that, sir?
Jefferson: 00:33 Oh my. That would suggest to me that you have fallen desperately away from any idea of a republic, and let me remind you that our system is a tripartite system. We have an executive branch, we have a legislative branch and we have a judicial branch. The theory of all of this is that the will of the people matters in a republic, that the people are sovereign, and they have a right to enact their will in the public square. Therefore the legislative branch is the most important one because it's the one that distills the will of the people. We have a House and the Senate to go about their work in slightly different ways and it produces law which is meant to represent the will of the people. The executive suggests action to the legislature and manages our foreign relations, but that person is really meant to administer the law once passed by the Congress. And the third branch, the judiciary, is meant to be far the weakest. They're meant to sit in isolation to examine laws that have been passed or actions of the executive and to give their opinion about whether it is in resonance with the principles of the constitution and the provisions of the bill of rights or whether it so deviates from our constitutional law that it is probably unconstitutional. That branch should far and away be the weakest. In my time, there were six members of the supreme court, in your time, nine. There is no principle of a republican form of government that would enable nine unelected, unaccountable, and unimpeachable beings to have as much power as your current president says they have. It is not a great privilege to name a Supreme Court justice. It's one of many, many, many things that a president does and it should be well below the top 10 or even top 100.
David: 00:33 But you do acknowledge that it is an important choice, sir.
Jefferson: 02:38 Yes. I chose three justices of the Supreme Court and more than 20 judges and justices in our federal system and I did what I could to provide geographic representation from all of the country and to make sure I chose people who had a, a view of our republic that squared reasonably with my own, but I didn't regard it as the seed of action. I regarded it as a very distant cousin of the two main branches of our national government, principally the legislative and secondly the executive, and how the Supreme Court has, has gained as much authority and centrality as it has an in your time is mystifying to me, but I can tell you this, it's not good for our people to be dependent upon nine unelected, unaccountable beings.
David: 03:30 I believe I understand your position, Mr Jefferson. Were you alive today what would you do to curb the power of the judicial branch?
Jefferson: 03:39 Well, part of this I'm afraid is settled by my cousin John Marshall, that gloomy malignity, he was named by Adams to be the chief justice of the Supreme Court during the last hours of the Adams administration. He went on to serve for 34 years and he so twistified his opinions as to make us a much more centralized national system than we had intended than the founding fathers had intended in Philadelphia, and by the time he was done so much was now settled that it would be very hard to restore the primacy of individual states and to lower the tone of the supreme court. I see the Supreme Court as the court of highest appeal, but also a group of advisors who say, this seems constitutional. We're not so sure about this. We invite the legislature to take another look at it.
David: 04:33 Mr President, I'm sorry but you've left me a bit gloomy as a citizen today and it sounds as if we're doomed.
Jefferson: 04:38 Once you name a supreme court justice and confirm him, he serves for life. That can be 40 or even 50 years in your time. That's, that's two generations. That's absolutely a violation of republican theory.
David: 04:53 Thank you very much Mr Jefferson.
Jefferson: 04:55 You are most welcome, sir.
When you vote for president, you are also voting for his cabinet, his White House staff, his level of enforcement of the laws on the books, indeed, for his likely executive orders, and for his or her nominations to the U.S. court system, including the Supreme Court.
"The constitution ... is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please." — Thomas Jefferson to Spencer Roane, 1819
Thomas Jefferson had a unique and slightly odd view of the proper place of the judicial branch in America. He thought of judicial independence as both a strength and a weakness of our system: you want judges that are independent of popular factionalism but you want them to be accountable to the sovereign, to the American people. Jefferson, as portrayed by Clay S. Jenkinson, discusses his concept of judicial balance, his lifelong displeasure with the Supreme Court, and some of the changes that he thinks should be made. He said of life-tenured judges, 'Few die and none resign.'