U.S. Supreme Court

By | Updated Nov 9, 2016 3:21 PM UTC

America’s founding fathers didn’t want a dominating federal government. So they split its powers among Congress, the president and the courts. The top judicial body, the Supreme Court, is made up of justices nominated by the president and confirmed by the Senate. If the justices then meet the Constitution’s sole requirement for the job — “good Behaviour” in the original text — they remain on the court until voluntary retirement or death. The system was designed to keep these judges free from election pressures. Nevertheless, the court’s decisions on issues including race relations and presidential reach have become more polarized in recent years and its public approval rating is sliding. A vacancy on the court has highlighted the divide and raised concerns that partisan politics is tainting its work.

The Situation

In March, President Barack Obama nominated Merrick Garland, chief judge of the federal appeals court in Washington, to the Supreme Court to replace Justice Antonin Scalia, who died unexpectedly in February. Nominees by Republican presidents have controlled the nine-member court since 1969, leading to 5-4 decisions that extended an individual’s right to own guns, lifted restrictions on corporate campaign spending and limited class-action lawsuits. Scalia’s death left an even split between Republican and Democratic appointees. This meant Obama, a Democrat in his last year as president, would have had a chance to reverse the court’s ideological slant. But Republican lawmakers who control the Senate were determined not to let that happen. They postponed their decision hoping the next president would be a Republican, a strategy that was rewarded when Donald Trump was elected in November. Trump has promised to nominate conservative justices in the Scalia mold and could ensure a Republican court for a generation. While waiting for a ninth justice to be confirmed, the court divided 4-4 on cases like bank credit discrimination, mandatory union fees and whether Obama had overstepped his authority in shielding as many as 4 million unauthorized immigrants from deportation. These ties meant that lower-court rulings stood; the immigration ruling killed one of Obama’s biggest initiatives. 

The Background

The Supreme Court was established in 1789 with a chief justice and five associates. For decades, each associate justice was also required to “ride circuit” to hear cases in circuit courts, sometimes hundreds of miles away on horseback. This made for a job suited only for the fit; Justice Iredell James died in 1799 at age 48 from overwork. The number of justices gradually rose to 10 in 1863 before settling at nine in 1869. The court’s decisions have frequently shifted the nation’s political direction, from Brown v. Board of Education in 1954 (which desegregated public schools), to Roe v. Wade in 1973 (which legalized abortion in every state), to Bush v. Gore in 2000 (which stopped a vote recount in Florida, making George W. Bush the president). So tensions are sharpened when a nomination falls to a president and Senate of opposing parties. In 1987, a Democratic-controlled Senate rejected Republican President Ronald Reagan’s nominee Robert Bork for his “originalist” views — that the Constitution should be interpreted as originally written — that could have led to rollbacks on abortion and voting rights. The court was made up only of white men until Thurgood Marshall became the first black justice in 1967. Sandra Day O’Connor was the first woman on the court in 1981; Sonia Sotomayor, who joined in 2009, is the first Hispanic justice.

The Argument

Supporters of lifetime tenure say it allows the views of justices to evolve far from the ideologies of the presidents who named them with no fear of retribution. Yet in recent years, scholars note, presidents have dug deep to select nominees whose firm convictions aren’t likely to shift over time. Where once major rulings, like Brown, were the product of unanimous votes, the number of important decisions that rest on a 5-4 split has been rising. Chief Justice John Roberts has said this could undermine the court’s legitimacy as an institution that transcends politics. The absence of mandatory retirement has let some aging justices continue working after strokes that caused mental debilitation. And the slow turnover means the court’s makeup has lagged behind the nation’s changing demographics. (Even after Scalia’s death, half of the justices are still white men.) Critics note the court lacks external supervision, so there’s no recourse when justices appear to violate ethics standards or hear cases in which they have conflicts of interest. Reformers say one solution is term limits. Some suggest an 18-year cap, staggered so each presidential term would bring two new faces to the court. Others think 10 years would be better, an idea supported by two-thirds of Americans in a 2015 poll.

The Reference Shelf

  • The Supreme Court of the United States’s website details its current members, their circuit assignments,  audio recordings of oral arguments and information on how to visit the court.
  • SCOTUSblog.com, named for the Supreme Court of the United States, tracks all the court’s actions.
  • Martin-Quinn Scores measure the relative locations of the Supreme Court justices on an ideological continuum.
  • Journal of Politics paper: “Predicting Drift on Politically Insulated Institutions: A Study of Ideological Drift on the United States Supreme Court.”
  • Justice Antonin Scalia’s son, the Rev. Paul Scalia, gave the homily at his father’s funeral mass on Feb. 20 at the Basilica of the National Shrine of the Immaculate Conception in Washington, D.C.

First published Feb. 19, 2016

To contact the writer of this QuickTake:
Laurie Asseo in Washington at lasseo1@bloomberg.net

To contact the editor responsible for this QuickTake:
Anne Cronin at acronin14@bloomberg.net