The process of selecting and appointing justices to the Supreme Court of the United States has in recent decades become highly contentious. It is not uncommon for opinion leaders on both sides of the ideological divide between liberals and conservatives to emphasize the importance of judicial nominations when urging their respective audiences to support particular political candidates. This sample short essay discusses why the appointment of Supreme Court justices is undemocratic, illustrating how clandestinely powerful this branch of government truly is.
Are appointed justices are unaccountable justices
The Supreme Court frequently plays the role of final arbiter concerning the most divisive social and cultural issues. All parties to this divide naturally find it in their interests to engage in the political process for the sake of insuring that judges sympathetic to their own positions will be appointed. The divisive nature of the appointment process is certainly understandable. The Supreme Court is comprised of nine unelected individuals with a lifetime appointment who hold within their hands tremendous power to shape American society for generations to come. It is for this reason that the established practice of selecting members of the Supreme Court through a process of political appointment is a fundamentally flawed concept.
The Supreme Court and The Constitution
Article Two of the United States Constitution establishes the procedure for appointing justices of the Supreme Court by means of Presidential nomination. No specific qualifications for those who receive such appointments are mandated by the Constitution. A potential justice who has been selected by the President need only be approved by the Senate. The Constitution likewise provides no specific criteria for the approval or rejection of those who are chosen by the President. It is rare that nominees are blocked from being given their seat on the Court by the Senate. To date, only twelve nominees have been rejected in the entire history of the United States.
The most recent of these was Robert Bork in 1987 (Greenberg). While this practice of choosing members of the Supreme Court by means of lifetime appointments issued by the President may be constitutionally mandated, it remains a destructive and unfortunate practice.
The President and members of Congress are selected by means of the electoral process. Therefore, candidates for these positions must make their personal ideological views and policy preferences known in advance as part of the process of gaining voter sympathy. However, judicial appointees need not disclose their views on important questions of jurisprudence unless asked to do so during the process of Senate confirmation.
Further, elected officials who act against the public interest may be removed from their position through electoral means. Because Supreme Court justices have a lifetime appointment, they are essentially free to do as they please within the context of their official position. Consequently, justices will frequently see fit to engage in judicial activism in ways that far exceeds their constitutionally allotted powers.
A landmark case for the Supreme Court
The 1973 Roe v. Wade decision which legalized abortion nationwide is a classic example of such judicial overreach. Justice Ruth Bader Ginsburg, herself a supporter of abortion rights, has argued that the Roe decision essentially usurped the powers of democratically elected institutions such as state legislatures (Heagney). Roe sought to impose a policy regarding abortion on an American public that had not yet come to be accepted by democratic consensus. The result of Roe was a decades long political and cultural polarization and atmosphere of divisiveness among the American people.
When the Court seeks to legislate social policy from the bench or impose laws that the public is not prepared to accept, it undermines the Court’s fundamental legitimacy. Indeed, a poll conducted by CBS News in 2012 indicated that sixty percent of respondents opposed the lifetime appointment of justices to the Supreme Court (Montopoli). Perhaps a constitutional amendment limiting justices to shorter terms or even requiring the popular election of justices is in order.
Greenberg, David. “Borking’ Before Bork. NYTimes.Com. New York Times, 20 December 2012. Web. 22 July 2013.
Heagney, Meredith. “Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit.” University of Chicago Law School Office of Communications. University of Chicago Law School Office of Communications, 15 May 2013. Web. 22 July 2013.
Montopoli, Brian. “Poll: 60 Percent Oppose Lifetime Supreme Court Appointments.” CBSNews.Com. CBS News, 7 June 2012. Web. 22 July 2013.