The Supreme Court is certainly topical at the moment with the passing on September 18th of Associate Justice Ruth Bader Ginsburg. Sadly, the process of replacing her – both who and when – has fallen into the political abyss of polarisation that currently characterises much of the U.S., exacerbated by a Presidential election which is just around the corner. Since this topic is currently front-page news, I thought it would be interesting to take a closer look at the Supreme Court and its history. By doing so, this should provide a foundation for better understanding the emotion that currently surrounds the process of replacing Ms Ginsburg.
Background of the Court
The foundation for the U.S. government is set forth in the U.S. Constitution, which was written and signed in 1787. The Constitution established a balance of power amongst three governmental bodies: the Legislative Branch, the Executive Branch and the Judicial Branch. The Legislative Branch refers to Congress, consisting of the House of Representatives and the Senate, which is responsible for making laws. The Executive Branch is headed by the President of the United States and is responsible for approving or vetoing laws written and presented to him by Congress; he also selects Federal judges and acts as Commander-in-Chief of the armed forces. The Judicial Branch, consisting of the Supreme Court and all lower federal courts, is responsible for interpreting laws and ensuring that they are aligned with what the justices believe are meant in the Constitution. The balance of power means each of the three governing bodies is separate and no one branch of the three can wrestle control over the other two, because there exists a system of checks and balances. The U.S. government has worked successfully since its establishment 233 years ago. Now let’s drill a bit deeper into the subject of this article, the Supreme Court, the top-most body of the Judicial Branch. (As an aside, the Supreme Court has a comprehensive website which you can access here.)
The Supreme Court was created by the Judiciary Act of 1789, and the court first assembled in 1790. According to Britannica, “the act established a three-part judiciary—made up of district courts, circuit courts and the Supreme Court — and outlined the structure and jurisdiction of each branch.” For reference, the district courts of the U.S. include 677 justices, the circuit (or appellate) courts include 179 justices, and the Supreme Court consists of nine justices. The responsibility for determining the size of the Supreme Court rests with Congress. At its inception, the Supreme Court consisted of six justices. The number was increased to seven in 1807, and an eighth and ninth justice were added in 1837. Finally, a 10th justice was added in 1863. For various reasons beyond the scope of this article (but suffice it to say political), the number of justices was reduced gradually from 10 to seven between 1866 and 1869, before being re-established at nine in 1869 pursuant to the Judiciary Act of 1869. Although there has been discussion from time to time about increasing the number of justices, the Supreme Court has operated with nine justices for the last 151 years.
It is the responsibility of the President to select justices in all layers of the Judicial Branch, for which he is meant to seek advice and counsel from the Senate (which never really happens regardless of the President). The choices for Supreme Court justices are vetted by a Senate Judicial Committee, and once the vetting is completed, the Senate votes on the new justice. The decision is made by a simple majority vote in the Senate, meaning that the party that controls the Senate is generally in control of approving the candidate. The choice of the Chief Justice of the Supreme Court follows the same path, with the Chief Justice occasionally coming from existing Associate Justices on the Supreme Court. However, more often than not as we have seen over its history, the Chief Justice comes from outside the Supreme Court. Each Supreme Court justice is appointed for life, although they can be impeached by the House of Representatives (similar to the President).
Focus of the Supreme Court
The Supreme Court hears both original cases, meaning they have not been heard by a lower court, and appellate cases, meaning that they have already been heard by a lower court but are being appealed. Original cases are generally confined to cases between states or cases involving ambassadors or other high-ranking ministers. These cases are infrequent. Most cases are appeals from lower courts, either the U.S. Court of Appeals or the highest court in a given state. According to the United States Courts website, about 7,000 such requests for appeal are sent to the Supreme Court each year, codified in a request known as a writ of certiorari. However, of these cases, only around 100-150 are accepted by the Court to be reviewed. The website I mentioned above is an excellent source for understanding how cases arise and are considered by the Supreme Court, so check it out if you want to learn more.
The Supreme Court normally hears 70-80 cases per year, with the range over the last 10 years being 63 to 92. The average number of cases heard over the last 10 sessions (2011-2020) for which the Supreme Court has ultimately provided a decision has been 77 cases each year.
The Justices on the Supreme Court
Since 1789, 117 different people have served as justices on the Supreme Court, including 17 Chief Justices and 102 Associate Justices (two of which were later named Chief Justice). You can find their names, the date they joined the Supreme Court and the day they left the Supreme Court, on the Supreme Court website here. To give you a sense of how often new justices are appointed to the Supreme Court, the table below gives you the number of justices appointed each decade since 1900.
Of the current eight members on the Supreme Court and the recently-deceased Ms Ginsberg, two each were appointed by former Presidents Obama, Clinton and G.W. Bush, two have been appointed by President Trump and one has been appointed by George G.H. Bush.
The roster of 117 Supreme Court justices that have sat on or are currently sitting on the Supreme Court have come from a pool of 163 candidates who have been considered by the Senate since 1789. You can find the comprehensive list and the outcome of each vote for every Supreme Court justice nominee on the U.S. Senate website here. You can surmise from the ratio of approved candidates to nominated candidates that being nominated does not by any means translate into being approved by the Senate. In fact, you probably recall the very contentious vetting of the last Supreme Court justice to be approved in 2018, Associate Justice Brett Kavanaugh. Similarly, President Trump’s first justice to be put forward and ultimately approved – Neil Gorsuch (2017) – also was a highly debated selection. In both cases, not a single Democrat in the Republican-controlled Senate voted for either justice, so this demonstrates just how partisan the process has become.
Lest this be seen as fully caused by the divisive rhetoric of President Trump, a default scenario these days for obvious reasons, this has not in fact been the case. The Supreme Court justices put forth by Presidents Bush (George W.) and Obama faced similar politicised approval processes, similar to those we have seen for President Trump’s nominations. For example, former President Obama’s Supreme Court nominees – Justice Kagan (2010) and Justice Sotomayer (2009) – were narrowly approved by a Democratic-controlled Senate with the only dissents coming from Republicans. Having said this, there were many nominated justices that were supported on a bipartisan basis across party lines prior to 2000, including the likes of Stephen Breyer (1994, 87-9), the late Ms Ginsberg (1993, 96-3), David Souter (1990, 90-9). Anthony Kennedy (1987, 97-0), Antonin Scalia (1986, 96-0) and Sandra Day O’Conner (1981, 99-0). In fact, as a sign of just how politicised the selection process has become, the last such non-partisan approvals for Supreme Court justices in the Senate occurred under President Clinton in the 1990s!
The first African-American Supreme Court justice – Thurgood Marshall – joined the Supreme Court in 1967 and served until his retirement in 1991. The first female Supreme Court justice – Sandra Day O’Conner – joined the Supreme Court in 1981 and served until her retirement in 2006. The first Latina Hispanic Supreme Court justice – Sonia Sotomayor – joined the Supreme Court in 2009 and still serves today. If you would like to learn more about the diversity of the justices that have served on the Supreme Court, see “Demographics of the Supreme Court of the United States” (Wikipedia).
Supreme Court “Tilt”
There has been increasing discussion, particularly over the last few years, regarding the “tilt” of the U.S. Supreme Court justices in aggregate. This simply means that the votes on contentious issues tend increasingly to occur along party lines, i.e. Republican/Republican-leaning justices vote more conservative, leaning to the right, and Democrat/Democrat-leaning justices vote more liberal, leaning to the left. This has generally turned out to be the case, although you might be surprised to learn that – much like the selection of judges prior to the beginning of the 21st century – most cases decided by the court seem to have a clear majority. I personally would like to believe that this means judges are above the political fray of “left-right” and are instead interpreting the Constitution in a way that they believe our forefathers intended.
The tables below are both extracted from Wikipedia, and show the Court’s decisions 20 years apart (in 1999 and 2019), so you can see the trends (or lack thereof) as far as the way that specific justices have voted. Focus mostly on the President that nominated the candidate (as a basis for Democratic or Republican leanings) and the % agreement with judgement. (For reference, the colour coding (to the right) is: green, delivered opinion; blue, filed a concurrence/agreed; purple, filed a concurrence/dissent; and red, filed a dissent.)
It is hard to read too much into these since consents and dissents can come from both sides. However, as the tables suggest, more often than not the large majority of justices agree with the decision being made. If you look at the most recent year (2019), you can see that the justice most people view as the most conservative on the Supreme Court – Clarence Thomas – still agreed with 68.3% of the decisions made, whilst arguably the justice most people view as the most liberal – Sonia Sotomayor – agreed with 71%.
Below is another graphic from Wikipedia using data developed by Andrew D. Martin and Kevin M. Quinn (please see this link for methodology), showing the leaning of Supreme Court justices over time (graph developed by Randy Schutt - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=29585342). 0 is the median on the left axis, with a positive number meaning the justice is leaning conservative/right/Republican and a negative number meaning the justice is leaning liberal/left/Democratic.
Aligning with the chart above is the way that Martin and Quinn believe the current Supreme Court justices lean, including Ms Ginsberg prior to her death. This is generally agreed.
Landmark Supreme Court Decisions
The American Bar Association publishes a list of what it considers to be 11 landmark Supreme Court decisions dating back to 1803 – see here. Four of the more notable such decisions, at least since the 1950s, have been:
Regents of the Univ of CA vs Bakke, 1978 – upheld affirmative action
Roe vs Wade, 1973 – upheld the right of a woman to make a private choice regarding abortion (subject to term of pregnancy)
Miranda vs Arizona, 1966 – required police to inform people in custody of their right to remain silent and to have an attorney
Brown vs Board of Education, 1954 – overturned an earlier decision (Plessy vs Ferguson), effectively laying the foundation for ending segregation
It is no secret of course that probably the decision that creates the most emotion, and the one that many Americans fear the most of being overturned one day if the Supreme Court tilts too much to the right, is Roe vs Wade which is pro-choice (as opposed to pro-life).
So Why the Current Uproar?
With this context, let me discuss the current issues gripping the U.S. because of the death last week of Supreme Court Justice Ruth Bader Ginsberg.
I have already alluded to the first issue, which is the on-going “tilt” of the U.S. judicial system towards the right, reflecting a more conservative interpretation of the U.S. Constitution. President Trump has already replaced two Supreme Court justices with more conservative justices that he selected (and that the Republican-controlled Senate approved), and now has the opportunity to appoint a third Supreme Court justice due to the recent death of Ms Ginsberg. Of course, this tilt goes beyond just the Supreme Court, as President Trump has also appointed 53 justices to the U.S. Court of Appeals (of 179 total) and 159 justices to U.S. district courts, with another 35 or so pending (of 677 total). The appointment period for U.S. Courts of Appeals (i.e. Circuit Court) judges, similar to Supreme Court judges, is lifetime. District judges are appointed for 8-year terms. Since the U.S. Court of Appeals hears many more cases than the Supreme Court each year and has the final say on a large majority of cases (recall that only 100-150 cases of 7,000 make it to the Supreme Court each year), the tilt is perhaps even more significant at the Circuit Court level. This report from the Congressional Research Service contains reams of data about the selection of justices for the U.S. District and Circuit Courts since 1977 (through 2018).
The second issue is the principal of appointing a Supreme Court justice so close to the end of a Presidential term. This is a matter of form, not substance, because the reality is that President Trump is perfectly entitled to put forth a candidate and the Senate is perfectly entitled to vote on such a candidate now. However, the concerns of Democrats relate to two things. Firstly, even though the President and the Senate are entitled to move forward on a replacement for Ms Ginsberg now, it makes more practical sense to leave the nomination aside until the election is held since it is so close, with an understanding that the newly-elected President and Senate can then proceed with the nomination based on the outcome of the election. This is de facto deferring to the people’s choice since an election is imminent. It’s not just that this is an election year, but the fact that the election is less than two months away.
Secondly, even in 2016 after the death of Antonin Scalia and 10 months before President Obama was to leave office, the Republican-controlled Senate wouldn’t consider the President’s nomination (Merrick Garland) on the basis that no election-year Supreme Court justice had been considered since 1932. Arguably, this was the Senate taking the high ground, but how quickly the tables can turn in politics! (As an aside and important for this discussion, the Republican-controlled Senate amended the rules on a filibuster in 2017, which is a way for the party out of power to drag out the investigative proceedings and vetting process. The number of votes to end a filibuster was decreased from 60 to a simple majority of 51, meaning that the Senate approval can occur relatively quickly.) Within hours of the death of Ms Ginsberg, President Trump vowed to replace her even as his first term winds down with a Presidential election less than two months away, and the Republican-controlled Senate seemed to fall in line on a partisan basis.
For most people, the fact that President Trump decided not to take the high ground is not a surprise. However, perhaps even more shocking –especially to Democrats in the Senate – is the fact that several prominent Republican Senators, including the likes of Mitch McConnell and Lindsey Graham, suggested that considering President Obama’s nomination of a Supreme Court justice 10 months before his term expired in 2016 was an affront to the electorate. Mr McConnell said in 2016: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president." Lindsey Graham said "I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination." (see https://twitter.com/cspan/status/1307172635298725888). These are the words of two very prominent Republican Senators who, along with the party at large, seems to have thrown out the precedent which they themselves put forth only four years ago. It is easy to see why the Democrats are so upset about this.
Conclusion
The history of the Supreme Court is fascinating, and it is a perfect time to discuss this given the current dialogue around the potential nomination of a third Supreme Court justice by President Trump. I would expect President Trump and the Republican-controlled Senate to put forth and select a new Supreme Court justice before the election, in spite of Democrat objections. The shoe is very much on the other foot compared to 2016, but this seems to matter little to the Republicans in power as it is another opportunity to influence the “tilt” of the U.S. judicial system to the right.