Replies

Yes, that is one approach. The freedom from external pressure and judicial impartiality argument used to justify lifetime appointments is, in my view, a red herring. To say so, is to claim the judges are not human beings and not only that, but also not politicians and active members of their communities. Being these things (human being, politician, activist) is exactly how they got these appointments in the first place, isn't it? There is no reason why these appointments should be permanent and the difficult impeachment process be the only remedy for public dissatisfaction with a pattern of objectionable rulings. Every other chief decision maker in the government is subject to a periodic performance review at the ballot box. Why should they be exempt?

Another remedy is for the legislature to make the laws it passes in this area exempt from judicial review. However, legislatures are very reluctant to do this because the legislature may not trust the executive to carry out the law as intended anymore than it trusts the judiciary to interpret it properly. Removing the potential for judicial review (via lawsuit) takes away the one real tool the legislature has to check the executive if it decides not to enforce the law or begins to enforce a version of the law the legislature didn't intend. True, the legislature can impeach executive officers or defund it. But both these actions are lengthy processes requiring a lot of legislative cooperation between the parties and both have the potential for a lot of unintended consequences. By contrast, individual legislators (or groups of them) can bring enforcement lawsuits to call the executive to account for itself. Where? In the courts. But if court action has been previously cut off by ill-considered legislation, what is the effective forum for checking the executive?