{"id":12083,"date":"2018-11-18T17:55:34","date_gmt":"2018-11-18T22:55:34","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=12083"},"modified":"2019-05-20T21:13:49","modified_gmt":"2019-05-21T02:13:49","slug":"staunchly-structured-scotus-is-there-a-better-way","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2018\/11\/18\/staunchly-structured-scotus-is-there-a-better-way\/","title":{"rendered":"Staunchly Structured SCOTUS \u2013 Is There a Better Way?"},"content":{"rendered":"
\"\"
Photo courtesy of Pixabay.<\/figcaption><\/figure>\n

By: Rachel Pressdee, Staff Writer<\/strong><\/p>\n

 <\/p>\n

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; \u201cJustice Ruth Bader Ginsburg Hospitalized . . .\u201d[1]<\/sup><\/a>\u00a0 Of course, everyone received the same piece of news.\u00a0However, not everyone had the same moment of panic.\u00a0 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.\u00a0 Why should the health of an eighty-five-year-old woman be so important?\u00a0 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\u2019 decisions for years, or more accurately, for decades to come.<\/p>\n

The Supreme Court of the United States has shifted with Trump\u2019s nominations of Neil Gorsuch and Brett Kavanaugh.\u00a0 As a nine-justice court, many important decisions are the result of a 5-4 majority, leaving the decision to a \u201cswing justice.\u201d[2]<\/sup><\/a>\u00a0 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]<\/sup><\/a>\u00a0Due to Kennedy\u2019s 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]<\/sup><\/a>\u00a0 Democrats would be served a blow that would last for generations if Justice Ginsburg because unable to serve, but why?<\/p>\n

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]<\/sup><\/a>\u00a0 When new justices are selected to the high courts of other countries there tends to be minimal public controversy.[6]<\/sup><\/a>\u00a0 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]<\/sup><\/a>\u00a0 For example, when Trudeau began the process of selecting a new justice, he started by accepting applications.[8]<\/sup><\/a>\u00a0 Fourteen candidates filled out questionnaires that were reviewed by an independent advisory board.[9]<\/sup><\/a>\u00a0 Members of the opposition party in Parliament described Justice Martin as \u201can extraordinary jurist,\u201d \u201cwell-respected,\u201d and with the right \u201cjudicial temperament.\u201d[10]<\/sup><\/a>\u00a0 It would be hard to imagine these words being used by the Democratic party to describe Justice Kavanaugh upon confirmation.<\/p>\n

Canadian justices are appointedfor life, but with a mandatory retirement age of seventy-five.[11]<\/sup><\/a>\u00a0 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]<\/sup><\/a>\u00a0 Even morecountries have set term limits, some as short as threeyears, as in Madagascar, some as long as twelve years, as in Venezuela.[13]<\/sup><\/a><\/p>\n

Additionally, most large nations have larger courts than the nine-jurist SCOTUS.[14]<\/sup><\/a>\u00a0 Having more justiceslimits the power that each justice has and allows greater diversity in experiences and viewpoints.[15]<\/sup><\/a>\u00a0 Germany\u2019s high court has sixteen justices, Japan\u2019s has fifteen, and India\u2019s has thirty-one.[16]<\/sup><\/a>\u00a0 Some countries have far greater numbers divided into different divisions: France\u2019s high court has 124 judges and deputy judges.[17]<\/sup><\/a>\u00a0 The Constitution does not specify how many justices are to sit on the Supreme Court\u2019s bench, instead,it allows for Congress to decide.[18]<\/sup><\/a>\u00a0 The Judiciary Act of 1789 established the first Supreme Court; sixjustices sat on that bench.[19]<\/sup><\/a>\u00a0 The maximum number of justices changed several times throughout the Court\u2019s history.[20]<\/sup><\/a>\u00a0 In 1869, a new Judiciary Act set the number to nine justices, andthe number of justices has remained stable since then.[21]<\/sup><\/a><\/p>\n

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.\u00a0\u201cWith 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.\u201d[22]<\/sup><\/a>\u00a0 Is it time for the United States to make changes to the structure of its highest court?<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n

Sources:<\/strong><\/p>\n

\n

[1]<\/a>https:\/\/www.npr.org\/2018\/11\/08\/665598088\/justice-ruth-bader-ginsburg-hospitalized-after-falling-fracturing-3-ribs<\/p>\n

[2]<\/a>https:\/\/www.theguardian.com\/commentisfree\/2012\/jun\/27\/bigger-better-supreme-court-reform<\/p>\n

[3]<\/a>https:\/\/fivethirtyeight.com\/features\/how-kavanaugh-will-change-the-supreme-court\/<\/p>\n

[4]<\/a>Id.<\/em><\/p>\n

[5]<\/a>https:\/\/www.washingtonpost.com\/news\/worldviews\/wp\/2018\/07\/10\/selecting-a-supreme-court-justice-doesnt-have-to-be-a-battle-royal-heres-how-other-countries-do-it\/?utm_term=.6d6292967e21<\/p>\n

[6]<\/a>Id.<\/em><\/p>\n

[7]<\/a>Id.<\/em><\/p>\n

[8]<\/a>Id.<\/em><\/p>\n

[9]<\/a>Id.<\/em><\/p>\n

[10]<\/a>Id.<\/em><\/p>\n

[11]<\/a>https:\/\/www.cia.gov\/library\/publications\/the-world-factbook\/fields\/2094.html<\/p>\n

[12]<\/a>Id.<\/em><\/p>\n

[13]<\/a>Id.<\/em><\/p>\n

[14]<\/a>https:\/\/www.theguardian.com\/commentisfree\/2012\/jun\/27\/bigger-better-supreme-court-reform<\/p>\n

[15]<\/a>Id.<\/em><\/p>\n

[16]<\/a>Id.<\/em><\/p>\n

[17]<\/a>Id.<\/em><\/p>\n

[18]<\/a>https:\/\/constitutioncenter.org\/blog\/why-does-the-supreme-court-have-nine-justices<\/p>\n

[19]<\/a>Id.<\/em><\/p>\n

[20]<\/a>Id.<\/em><\/p>\n

[21]<\/a>Id.<\/em><\/p>\n

[22]<\/a>https:\/\/www.theguardian.com\/commentisfree\/2012\/jun\/27\/bigger-better-supreme-court-reform<\/p>\n","protected":false},"excerpt":{"rendered":"

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; \u201cJustice Ruth Bader Ginsburg Hospitalized . . .\u201d[1]\u00a0 Of course, everyone received the same piece of news.\u00a0However, not everyone [\u2026] <\/p>\n

<\/div>\n

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