The U.S. Supreme Court is a court of last resort and, more importantly, a court that interprets our United States Constitution. We expect our Supreme Court to be the epitome of fairness. Yet, we customarily do everything possible to choose future justices who will decide issues the way we want those issues decided. During the first hundred years of the court’s existence, the US Congress changed the number of seats on the Supreme Court seven times. Each time the purpose of the change was to influence the decisions of the court. The number of seats was changed from the original six to five; then from five back to six; then from six to seven; then from seven to nine; from nine to ten; from ten to seven; and, finally, from seven to nine.
The president of the United States has the constitutional authority to nominate a candidate for a vacant Supreme Court seat. The U.S. Senate must approve the appointment. A president usually tries to nominate a candidate who has a “correct” political philosophy. That doesn’t always work. A justice serves for life unless the justice retires for personal or health reasons. During recent decades several justices served longer than 20 years.
The newly appointed justice may decide current issues exactly the way we want those issues decided. But a justice can change his or her philosophy while serving a long tenure on the Supreme Court. Public opinion evolves over time, and new unforeseen issues come before the court. A Supreme Court justice is not bound by the judicial philosophy he or she holds on the day of appointment.
In 1918 the Supreme Court held that the U.S. Congress couldn’t write a law regulating child labor. That is, they said that the national government could not make a law prohibiting the employment of children in factories or mines. But 23 years later, the Supreme Court overturned its own ruling. Attitudes changed.
The Supreme Court interprets the U.S. Constitution, and that instrument of government has been amended 27 times and undoubtedly will be further amended in the future. We cannot know how a justice selected today will interpret an amendment enacted tomorrow.
The writers of the U.S. Constitution put safeguards into our system of government including a separation of power that is designed to prevent the development of tyranny. The founders gave the president the power to select and nominate Supreme Court justices. They established no qualifications for a justice. They gave maximum discretion to the president. However, as a safeguard, the founders required the U.S. Senate to confirm the president’s selection. That provision assures that a rogue will not serve on the court. But the founders did not intend for the U.S. Senate to be able to demand a nominee of their choice. If the writers of the constitution had so intended, they would have given the selection process to the senate. The built-in safeguard requires that the president select U.S. Supreme Court justices and the U.S. Senate confirm that a president’s nominee is loyal, qualified, and mentally competent. A U.S. Senate refusal to consider a Supreme Court nominee would be a dereliction of constitutionally mandated duty.
Jack Stevenson is now retired from military service. He served two years in Vietnam as an infantry officer and worked three years as a U.S. Civil Service employee. He also worked in Egypt as an employee of the former Radio Corporation of America (RCA).