Nature and role of the SC
- Congress had passed legislation to fulfil Article III, which allowed for the creation of the
SC, consisting of one chief Justice and 5 associate judges. This act also created the
lower courts that would sit under the SC. Today 94 district courts exist.
- The SC is an appellate court which accepts cases for review from the courts beneath it.
It has original jurisdiction (meaning it is the first court to hear a case in certain
circumstances)
Independence of the SC
- Justices are appointed for life. This means the President or Congress cannot remove
them if they make decisions they don;t like.
- Vacancies on the SC only occur if a current judge dies, retires or is impeached. This
prevents the other branches from packing the court with their allies.
- The constitution prevents the salary of the justice being lowered during their time in
office. In 2022, SC associate justices were paid $274,200. With their salary being fixed,
the justices do not have to be concerned about repercussions from the president or
congress if they vote against them in a case.
- Justices are nominated by the president and approved by the Senate. This prevents one
branch from dominating the SC and filling it with people of an ideology to theirs. It also
lends legitimacy to the court
- Separation of powers protects the Court’s independence by giving judges their own
power. Judicial review allows the SC to check the power of the president and Congress.
- The ABA rates the suitability of each justices nominated. Compromised by industry
experts who are not politically motivated, the ABA helps to ensure that the Court is
composed of people who understand and carry out the law without being biassed to a
party.
Judicial review
- Is the power of the SC to review the laws or actions of Congress and the President and
to judge whether they are constitutional. If the court finds them to contradict the US
constitution then they can deem it null and void, making it no longer enforceable.
- E.g. Fletcher v Peck 1810 where the SC decided to repeal the 1795 law as
unconstitutional.
- The SC is also responsible for interpreting the US constitution
The appointment process
Since the Judiciary act 1869, there has been 1 chief justice and 8 associate justices.
Constitutionally the president must nominate justices for the senate to either confirm or reject.
, 1. Vacancy arises: A vacancy can only arise through death, retirement or impeachment of
a current SC justice. E.g. Breyer announced in jan 2022 that he would retire at the end
of the SC term
2. Presidential nomination: The President can choose whoever they like to fill a vacancy. It
is expected that the nominee will have judicial experience and will be able to pass the
Senate vote. The president is likely to pick someone who shares a similar ideology. E.g.
Bush and Trump both nominated justices who were likely to be conservative in their
ruling (Roberts, Kavanaugh and Barrett), while Obama and Biden appointed those with a
likely liberal outlook (Kagan and Jackson).
3. ABA rating: Not a constitutional requirement but the ABA offers a rating of ‘unqualified’
or ‘well-qualified’ for nominees, in its professional opinion. E.g. All but one of the current
justices in the SC hold a well qualified rating
4. Senate judiciary committee hearings: Not a constitutional requirement by the committee
holds hearings in which it can question the nominee. At the end of the hearing the
committee takes a vote, this vote serves only as a recommendation to inform the whole
senate vote. E.g. Bork was rejected by the Committee 9-5 and subsequently faced
defeat in the full senate vote.
5. Senate floor vote: Following the SJC vote the whole senate must vote to confirm an
appointment. It requires a simple majority. E.g. Bork was rejected in 1987 by 42-58 vote.
The votes of all nominees since 2006 have been dominated by party politics, compared
to votes confirming justices such as Bader Ginsburg in 1993, who won by 96-3
Presidential considerations for a judicial nominee
● Judicial experience: it is expected that the nominee should have experience as a judge
and be qualified in law. This was one of the key reasons why Harriet Miers faced
criticism in 2005 as she lacked experience as a judge.
● The outgoing justice: The president may be expected to replace a justice on a ‘like for
like’ basis in terms of ideology as this is likely to face less opposition in the senate.
However, since 2005 the Senate votes have become more partisan.
● The demographics of the supreme court: A president may wish to widen the
representative nature of the SC through their appointments. Obama appointed 2 women,
and appointed the first Hispanic person to the court (Sonia Sotomayor).
● The ideology of the nominee: Almost all nominees are qualified in law and have usually
been a judge on a lower court. For previous ruling it is possible to try to ascertain their
ideology and whether it fits with the President’s.
The current court
Kennedy was the swing justice following the appointment of Alito to the Court in 2006. The court
now has a 6 seat majority of conservative thinkers. Judicial ideologies can be inferred based on
the rulings that have been made. Only 20% of cases are decided with a 5-4 vote and the most
common decision issued by the court is 9-0. This suggests the ideological divisions that are
- Congress had passed legislation to fulfil Article III, which allowed for the creation of the
SC, consisting of one chief Justice and 5 associate judges. This act also created the
lower courts that would sit under the SC. Today 94 district courts exist.
- The SC is an appellate court which accepts cases for review from the courts beneath it.
It has original jurisdiction (meaning it is the first court to hear a case in certain
circumstances)
Independence of the SC
- Justices are appointed for life. This means the President or Congress cannot remove
them if they make decisions they don;t like.
- Vacancies on the SC only occur if a current judge dies, retires or is impeached. This
prevents the other branches from packing the court with their allies.
- The constitution prevents the salary of the justice being lowered during their time in
office. In 2022, SC associate justices were paid $274,200. With their salary being fixed,
the justices do not have to be concerned about repercussions from the president or
congress if they vote against them in a case.
- Justices are nominated by the president and approved by the Senate. This prevents one
branch from dominating the SC and filling it with people of an ideology to theirs. It also
lends legitimacy to the court
- Separation of powers protects the Court’s independence by giving judges their own
power. Judicial review allows the SC to check the power of the president and Congress.
- The ABA rates the suitability of each justices nominated. Compromised by industry
experts who are not politically motivated, the ABA helps to ensure that the Court is
composed of people who understand and carry out the law without being biassed to a
party.
Judicial review
- Is the power of the SC to review the laws or actions of Congress and the President and
to judge whether they are constitutional. If the court finds them to contradict the US
constitution then they can deem it null and void, making it no longer enforceable.
- E.g. Fletcher v Peck 1810 where the SC decided to repeal the 1795 law as
unconstitutional.
- The SC is also responsible for interpreting the US constitution
The appointment process
Since the Judiciary act 1869, there has been 1 chief justice and 8 associate justices.
Constitutionally the president must nominate justices for the senate to either confirm or reject.
, 1. Vacancy arises: A vacancy can only arise through death, retirement or impeachment of
a current SC justice. E.g. Breyer announced in jan 2022 that he would retire at the end
of the SC term
2. Presidential nomination: The President can choose whoever they like to fill a vacancy. It
is expected that the nominee will have judicial experience and will be able to pass the
Senate vote. The president is likely to pick someone who shares a similar ideology. E.g.
Bush and Trump both nominated justices who were likely to be conservative in their
ruling (Roberts, Kavanaugh and Barrett), while Obama and Biden appointed those with a
likely liberal outlook (Kagan and Jackson).
3. ABA rating: Not a constitutional requirement but the ABA offers a rating of ‘unqualified’
or ‘well-qualified’ for nominees, in its professional opinion. E.g. All but one of the current
justices in the SC hold a well qualified rating
4. Senate judiciary committee hearings: Not a constitutional requirement by the committee
holds hearings in which it can question the nominee. At the end of the hearing the
committee takes a vote, this vote serves only as a recommendation to inform the whole
senate vote. E.g. Bork was rejected by the Committee 9-5 and subsequently faced
defeat in the full senate vote.
5. Senate floor vote: Following the SJC vote the whole senate must vote to confirm an
appointment. It requires a simple majority. E.g. Bork was rejected in 1987 by 42-58 vote.
The votes of all nominees since 2006 have been dominated by party politics, compared
to votes confirming justices such as Bader Ginsburg in 1993, who won by 96-3
Presidential considerations for a judicial nominee
● Judicial experience: it is expected that the nominee should have experience as a judge
and be qualified in law. This was one of the key reasons why Harriet Miers faced
criticism in 2005 as she lacked experience as a judge.
● The outgoing justice: The president may be expected to replace a justice on a ‘like for
like’ basis in terms of ideology as this is likely to face less opposition in the senate.
However, since 2005 the Senate votes have become more partisan.
● The demographics of the supreme court: A president may wish to widen the
representative nature of the SC through their appointments. Obama appointed 2 women,
and appointed the first Hispanic person to the court (Sonia Sotomayor).
● The ideology of the nominee: Almost all nominees are qualified in law and have usually
been a judge on a lower court. For previous ruling it is possible to try to ascertain their
ideology and whether it fits with the President’s.
The current court
Kennedy was the swing justice following the appointment of Alito to the Court in 2006. The court
now has a 6 seat majority of conservative thinkers. Judicial ideologies can be inferred based on
the rulings that have been made. Only 20% of cases are decided with a 5-4 vote and the most
common decision issued by the court is 9-0. This suggests the ideological divisions that are
