Too often, citizens are not aware of how our government is set up nor how it functions. That leaves openings for the media and others to plant false information. The process is not understood. That includes the Supreme Court Justices.
When new justices are appointed, the public gets confused. They don't understand the process and think they should be voting. Maybe that is an idea. But first we have to explore the process as it is now and what the Founding Fathers intended.
What the Constitution Says
Let's go to the source - The United States Constitution. The Supreme Court is discussed in Article III (3) and is laid out as follows:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
While Article III sets up the Supreme Court, it is in Article II Section II where it is created:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Changes Over the Years
The Constitution set up that the Congress could set up the number of Supreme Court Justices. It was under the Judiciary Act of 1789 that set the number of Justices to be six. This number has changed back and forth over the years. In fact, it became a tennis match of sorts as the number rose and fell and repeated depending on who was in charge at the time.
"In 1801, President John Adams and a lame-duck Federalist Congress passed the Judiciary Act of 1801, which reduced the Court to five Justices in an attempt to limit incoming President Thomas Jefferson’s appointments to the high bench. Jefferson and his Republicans soon repealed that act, putting the Court back to six Justices. And in 1807, Jefferson and Congress added a seventh Justice when it added a seventh federal court circuit.
"In early 1837, President Andrew Jackson was able to add two additional Justices after Congress again expanded the number of federal circuit court districts. Under different circumstances, Congress created a 10th circuit in 1863 during the Civil War, and it briefly had a 10th Supreme Court Justice. However, Congress after the war passed legislation in 1866 to reduce the Court to seven Justices. That only lasted until 1869, when a new Judiciary Act sponsored by Senator Lyman Trumbull set the number back to nine Justices, with six Justices required at a sitting to form a quorum. President Ulysses S. Grant eventually signed that legislation and nominated William Strong and Joseph Bradley to the newly restored seats.
"...Roosevelt supported a Judicial Procedures Reform Bill of 1937 to add as many as six new Justices. The legislation struggled to gain traction, and it was opposed..."(https://constitutioncenter.org/blog/why-does-the-supreme-court-have-nine-justices)
I had to add this entire quote as it couldn't be summed up any better. Justices have been added and taken away to arrive to the nine we currently have sitting on the bench.
That is the history of the number of judges. Now on to the political power they possess.
Political Power of Justices
No one branch of the government has complete power. The country was set up to be that way because of the past experiences the people had endured. They wanted more power in how their country was governed and less chance of injustice to prevail. That is why the Supreme Court does not completely rule this country nor any section aside from the Constitution itself.
Even then, the Court does not have absolute control. If an amendment is created by the legislative branch, the Court has to accept it and make sure all laws and officials act in support of the U.S. Constitution. The Supreme Court rules on laws and actions. If they do not support the Constitution, they are deemed illegal or overturned. The Constitution is considered the supreme law of the land.
The Supreme Court cannot try an official. The justices cannot put anyone in jail. They interpret the Constitution in toady's world.
Why are they mentioned so much during election years? Because they help guide the country and interpret the laws that lean either left, right, or right down the middle. A liberal justice will interpret laws liberally. A conservative will lean right. If a president nominates more people to fill justice slots that lean politically in his favor, that could scare the other side who wants things to be view through their political eyes.
The most famous Supreme Court case was Roe vs. Wade - the largest abortion ruling in American history. That decision made abortion legal in all states. Any law saying a woman couldn't have one was deemed overturned. To make this black and white, liberals tend to be pro-choice on this topic while conservatives tend to be against abortion. If a conservative president is able to get more conservative justices on the Court, Roe vs. Wade could be overturned. This is just example of many where the political power of the Supreme Court can be viewed.
Pros of Voting
Voting sounds appealing to many. Those in support, think it would remove much of the political powerplay away from the politicians, but would it? Let's explore the pros of voting for our Supreme Court Justices.
- The People's Say If justices are voted on by the people, the people get to have their say and not have the executive branch be the one who controls who has a chance. The people would truly have control of their country and who interprets the law the for them.
- Shuts Executive and Legislative Branches Up Oh, wouldn't that be nice? When the President has to nominate a justice, the legislative branch typically begins its attacks. It all becomes so political. No one wants the executive branch to get more people on the bench that lean in their preferred political direction. It all becomes a game of power. Voting would remove that and put it in the hands of the people.
Cons of Voting
Where there are pros, there are also cons.
- More Political It might appear that voting for the Supreme Court justices, but it really makes the process more political. The vying for votes is done quietly and mainly restricted to Washington, D.C. Opening the voting to the nation, spreads it across the country where more and more campaigning has to occur as well as a million or more ads pushed onto the people.
- Harder to Mange When more people are involved, a process is harder to manage. It becomes more complicated and more expensive. Limiting the process, allows it to be more controlled and orderly.
There is enough stress over obtaining new Supreme Court Justices under the present procedure. Politics is not a smooth pond to swim in. Regular citizens get splashed miles from the pool. If placing new justices was placed into the hands of every citizen, the entire Supreme Court might just die out.
The current process is messy enough. Voting on the justices could make it worse and divide the country more than it is already. Sometimes new ways are not always the best. But it is something to think about. What are your thoughts?
Peggy Woods from Houston, Texas on October 15, 2020:
The number of senators confirming a supreme court judge should have to be higher than a simple majority. That would set a higher bar and diffuse the pure political power of any one ruling party. We have now, a Republican President and a majority of Republican Senators, ramming through another supreme court judge in the middle of an election despite most Americans wishing for the next elected President to have that option.
Heidi Thorne from Chicago Area on October 15, 2020:
While voting in Supreme Court judges does have appeal, I also think that it would become politicized and be a total disaster. Yet it's unfortunate that one President, whoever it might be, can extend his influence for years after his/her presidency is over. Trump has already appointed 2 Supreme Court justices and is working on a 3rd. That's a lot in a 4-year term.
What I think is the best course of action is to have term/time limits for Supreme Court justices. Why should these be lifetime appointments?
Great discussion. Thanks.