We Trust the Judges We Did Not Choose More Than the Representatives We Did

Here is a fact about public opinion that holds, with local variations, across most democracies: people trust their supreme court more than they trust their legislature.

Stated plainly it is strange. We do not choose the judges. They are appointed, usually by a process the public barely follows, and once appointed they sit for a very long time, often for life. The legislators, by contrast, are the people we supposedly selected, at an election we were all invited to, and whom we can remove in a few years if we dislike them. Every element of the theory of representation says we should trust the second group more. We trust the first.

Why?

The Wrong Explanations

It is not that judges are cleverer or better educated. Legislatures are full of lawyers; the difference in credentials is small.

It is not that judges are more virtuous by temperament. They are drawn from the same profession and the same class, and there is no selection step that filters for character.

It is not that judges never make political decisions. They make them constantly, and everyone knows it; the fights over appointments are fights over exactly that.

The explanation has to be something about the position, not the person.

The Right Explanation

The representatives control the money. The judges do not.

That is the whole of it. A legislature decides how the budget is raised and where it goes. It writes the tax code and the subsidies and the contracts and the exemptions. Every business in the country has a reason to want something from it and the means to ask. The judiciary decides what the law means and applies it to cases; there is nothing to award, no appropriation to steer, no contract to sign.

The public understands, without being taught, that money corrupts and that the people holding the money are the ones being corrupted. It does not need a theory of public choice to know this. It watches the campaign finance figures, the revolving door, the fortunes acquired in office, and it draws the correct inference. It does not see the same picture around the courts, because there is less to see.

So the ranking of trust is not irrational. It is an accurate reading of where the pressure is applied.

What This Proves About Elections

Now follow the implication, because it is larger than the observation.

If we trust unelected, unremovable officials more than elected ones, then the election is not what produces the trust. Whatever elections do, generating public confidence is not it.

What the election does, in this light, is act as a brake. It is a mechanism for periodically removing the people who control the money, in the hope that the threat of removal will limit how much they abuse the control. It is a curb on greed, not a source of legitimacy. We elect the legislators not because election makes them trustworthy but because they hold something that makes them untrustworthy, and we need a way to take it away from them.

And where there is no money to steer, we do not bother with elections at all. We appoint the judges and leave them there for decades, and the public is fine with that, because the thing that would make rotation necessary is absent.

The Distance This Reveals

The last point is the one I find most telling.

The public trusts a body it did not choose, cannot remove, and rarely understands over the body that is supposed to be the public in the room. That is a measurement. It measures how far the representatives have drifted from the people they represent, in the public's own estimation. If the distance were small, if the legislature really were the public's agent, the public would trust it the way you trust your own hand. It does not. It trusts a stranger in a robe more.

I have written before about how many separate signals point at this distance, and about how the system rewards the representative who is known to lie. This is another signal, and it comes from the public directly rather than from any analysis of mine. Ask people whom they trust and they tell you, in effect, that the representative system has failed at the one thing that would justify it.

Where It Points

None of this is an argument for rule by judges. Courts are unaccountable by design and that is tolerable only because their reach is narrow; extend it and the same corruption follows the same money.

It is an argument about what elections are for. If they are a brake on people who hold the purse, then the question is whether there is a better brake. Letting the public decide how the money is spent, directly, removes the purse from the few hands that made it a temptation. It does not require trusting anyone, elected or appointed. And it would be the first arrangement in which the body that decides where the money goes is one the public trusts as much as it trusts itself.