Supreme Court Appointment

Lesson Plan - Get It!

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Composition

According to the Constitution, Supreme Court justices "shall hold their Offices during good Behavior."

This has historically been interpreted to mean the appointments are for a lifetime, so long as they don't retire.

As the country has grown and the number of court cases has increased dramatically, so has the size of the Supreme Court itself.

The Constitution does not stipulate the number of Supreme Court justices, but the young nation initially decided to have six justices in 1789. However, by 1807, this was increased to seven, and by 1837, it was increased to the composition of nine that the court still has today.

Into the 20th century, the idea of increasing the size of the court has been suggested becasue of the plethora of court cases.

During Franklin Roosevelt's presidency, there was an attempt to increase the court size to 12 justices. This would have resulted in court stacking becasuse FDR would have been able to choose the three new justices and alter the ideological makeup of the court.

Appointment

Article II of the U.S. Constitution gives the president the authority to nominate any citizen to the position of a Supreme Court justice. There are no other qualifications; however, presidents almost always nominate successful lawyers or high-level judges already in the U.S. court system.

This nomination must then be approved by a simple majority vote in the Sentate in order to be confimed to the court.

• How does a president choose?

Because of their lifelong appointments, justices on the Supreme Court have the ability to significantly affect the path of the entire country. Therefore, presidents typically choose a qualified candidate whose ideology closely matches their own as a way to secure their legacy.

The diffiuclty with this approach, though, is that justices are meant to be apolitical and do not engage in any political debates. For this reason, a president can only look at a nominee's past cases and decisions to try to figure out how he or she will vote in the future.

Sometimes, the preductions are not accurate. The most dramatic example of this was the nomination of Earl Warren by Dwight D. Eisenhower in 1953.

^{Image by the White House, via Wikimedia Commons, is in the public domain.}

As the former governor of California, Earl Warren had been fairly conservative, and Eisenhower expected him to carry this into the court. However, after only a few years, it became evident that Chief Justice Warren would be one of the most liberal justices in history.

^{Image by Harris & Ewing, via Wikimedia Commons, is in the public domain.}

Take a look at a few of the landmark cases where Justice Warren was instrumental in deciding on the slides below:

By the time Earl Warren retired in 1969, the United States of America was a more equitable society and had legal decisions that enforced the idea that all men and women are created equal no matter their ethnic or economic status.

His influence was amplified even more because he was the Chief Justice of the Supreme Court. While this title does not come with any specific power, it grants the ability to take a more active or passive role as leader of the judicial body.

President Eisenhower appointed two justices to the Supreme Court during his presidency. In 1958, he said:

"I made two mistakes and both of them are sitting on the Supreme Court."

• How could a president mistakenly pick a justice with opposing ideological leanings?

Let's take a modern-day example to see how the office of Supreme Court Justice is significantly different than any other governmental office.

Neil Gorsuch

^{Image by Franz Jantzen, via Wikimedia Commons, is in the public domain.}

Let's follow the process of a new nomination to the court and see why it is impossible to know how a justice will vote.

When Donald Trump began his presidency in 2017, he sought to nominate a justice in the image of the recently deceased Antonin Scalia, who had been one of the most conservative justices on the court.

Justice Scalia practiced the political philosophy of originalism, which means he thought the Constitution should be interpreted as it was orginally written.

(You can discover more about originalism with the Additional Resource found in the right-hand sidebar.)

Watch this excerpt from Donald Trump's Supreme Court nomination speech and pay attention to the expectations he places on Gorsuch.

Trump Announces Neil Gorsuch as Supreme Court Nominee | ABC News:

Trump was clear that he expected Neil Gorsuch to represent the legacy of Antonin Scalia.

However, during his Senate confirmation hearing, Gorsuch vehemently denied the idea that he would vote on any partisan basis.

As you watch a portion of Supreme Court Nominee Judge Neil Gorsuch FULL Opening Statement (C-SPAN), listen for the answers to the following questions:

• How does Gorsuch characterize Antonin Scalia?
• How does Gorsuch distance himself from politics?
• What statistics does he use to illustrate his point?

While presidents may expect a certain ideology from a nominee, it is more complicated than that.

Now, knowing how both Donald Trump and Neil Gorsuch characterize the justice, take a look at the 2020 case McGirt v. Oklahoma.

Trump's perfect candidate to replace Antonin Scalia ruled with the four liberal justices in favor of Native American rights against the state government of Oklahoma. Gorsuch even wrote the majority Opinion (JUSTIA US Supreme Court).

Even after studying the past decisions of a potential justice, there is no way to predict how he or she may decide while serving on the Supreme Court.

Move on to the Got It? section to better understand how and why it is so difficult to determine the role justices will play on the Supreme Court.