Staunchly Structured SCOTUS – Is There a Better Way?

Photo courtesy of Pixabay.

By: Rachel Pressdee, Staff Writer


During a period of time when the news has been bleak and heartbreaking, some of our hearts skipped a beat upon reading the terrifying headline; “Justice Ruth Bader Ginsburg Hospitalized . . .”[1]  Of course, everyone received the same piece of news. However, not everyone had the same moment of panic.  The reason for that has nothing to do with RBG, but what she stands for and stands against as a justice of the Supreme Court of the United States.  Why should the health of an eighty-five-year-old woman be so important?  Because in the United States the selection of a new justice to the Supreme Court is an extremely important task that will affect the SCOTUS’ decisions for years, or more accurately, for decades to come.

The Supreme Court of the United States has shifted with Trump’s nominations of Neil Gorsuch and Brett Kavanaugh.  As a nine-justice court, many important decisions are the result of a 5-4 majority, leaving the decision to a “swing justice.”[2]  In recent years, Anthony Kennedy served as the swing justice; hisdecisions were conservative on issues like the death penalty, but liberal on other decisions such as gay rights and abortion.[3] Due to Kennedy’s retirement and the appointment of Kavanaugh, the median position of the court will no longer be a slightly liberal swing justice, now the median position will be filled by Justice John Roberts, a solidly conservative justice.[4]  Democrats would be served a blow that would last for generations if Justice Ginsburg because unable to serve, but why?

When Justin Trudeau, the Prime Minister of Canada, selected Alberta Judge Sheilah Martin to the Supreme Court of Canada in November 2017, his political opponents did not feel defeated, they welcomed his choice.[5]  When new justices are selected to the high courts of other countries there tends to be minimal public controversy.[6]  The selection of a new justice is not viewedas a political brawl with long-lasting consequences because of term limits, mandatory retirement ages, unbiased selection committees, or other mechanisms not used by the United States.[7]  For example, when Trudeau began the process of selecting a new justice, he started by accepting applications.[8]  Fourteen candidates filled out questionnaires that were reviewed by an independent advisory board.[9]  Members of the opposition party in Parliament described Justice Martin as “an extraordinary jurist,” “well-respected,” and with the right “judicial temperament.”[10]  It would be hard to imagine these words being used by the Democratic party to describe Justice Kavanaugh upon confirmation.

Canadian justices are appointedfor life, but with a mandatory retirement age of seventy-five.[11]  Many other countries join Canada in implementing mandatory retirement ages; Anguilla, Antigua and Barbuda, Australia, the Bahamas, Belgium, British Virgin Islands, Chile, Dominica, Grenada, Montserrat, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, and Yemen.[12]  Even morecountries have set term limits, some as short as threeyears, as in Madagascar, some as long as twelve years, as in Venezuela.[13]

Additionally, most large nations have larger courts than the nine-jurist SCOTUS.[14]  Having more justiceslimits the power that each justice has and allows greater diversity in experiences and viewpoints.[15]  Germany’s high court has sixteen justices, Japan’s has fifteen, and India’s has thirty-one.[16]  Some countries have far greater numbers divided into different divisions: France’s high court has 124 judges and deputy judges.[17]  The Constitution does not specify how many justices are to sit on the Supreme Court’s bench, instead,it allows for Congress to decide.[18]  The Judiciary Act of 1789 established the first Supreme Court; sixjustices sat on that bench.[19]  The maximum number of justices changed several times throughout the Court’s history.[20]  In 1869, a new Judiciary Act set the number to nine justices, andthe number of justices has remained stable since then.[21]

There are supporters of the unique structure of the SCOTUS, while others worry that these nine people have too much power, are selected in an over-politicizedmanner, and serve for too long of a period of time. “With the increasing longevity of justices, such divisions have become stagnant and bitter. We often find ourselves captive to the idiosyncratic views of a couple of justices’ views on privacy, or federalism, or free speech.”[22]  Is it time for the United States to make changes to the structure of its highest court?



























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