Lawyer Monthly - October 2021 Edition

THE GREATEST OBSTACLE TO ALTERING THE LENGTH OF JUSTICES’ TERMS IS THE CONSTITUTION ITSELF. WWW.LAWYER-MONTHLY.COM 34 The beginning of September saw an American legal story make international headlines as the United States Supreme Court declined to temporarily block the enforcement of a controversial new abortion law signed in Texas in a 5-4 decision. The “Heartbeat Act”, which prohibits abortions at the point of cardiac activity within an embryo – which is generally detectable within the first six weeks of a pregnancy – is the most severe of its kind in the country and has been met by widespread political backlash. Aside from galvanising progressive lawmakers into new efforts to see Roe v Wade codified into law, the decision has provoked an outpouring of public frustration towards the Supreme Court as an institution that is increasingly viewed as politically compromised. A Marquette Law School poll found that nationwide approval of the court plummeted to 49% in the wake of the Heartbeat Act ruling, down 10% from July. There have also been calls to bring permanent change to the court itself. Whether or not this surge of disapproval will have a lasting effect, however, is far from guaranteed. In this feature we take a look at the challenges facing the highest court of the United States, the solutions that have been proposed, and the relative likelihood of a shift in the court’s fundamental structure occurring in the near future. The key factor distinguishing the Supreme Court of the United States from its contemporary peers, aside from the manner in which justices are confirmed by the executive and legislative branches rather than an independent commission, is the length of time for which they are expected to serve. Germany’s top judges, for instance, each serve a single term of 12 years and must retire at age 68. Swiss judges must also retire at 68 and serve six-year terms, though they may be re-elected any number of times, while justices in the United Kingdom serve unlimited terms but must retire at 75. No such limits bind SCOTUS justices, who are appointed to their positions for life or until they choose to retire. The notion that appointees should serve lifetime tenure is extrapolated from language used in Article III, Section One of the US Constitution, which holds that justices “shall hold their offices during good behaviour”. It is generally understood that the Constitution’s framers created the Supreme Court with the intention of having it stand as an independent branch of government, and that the system of lifetime tenure was meant to shield justices from the political pressures of their day, when heads of state often dismissed judges whose work displeased them. Today, however, the longevity of individual justices has turned their appointments into an especially significant political event, leading to historically consequential shifts like President Trump’s appointment of three judges during a single term in office, resulting in a court supposedly slanted 6-3 in favour of conservative legal perspectives. Democrat and Republican presidents alike are now expected to nominate justices with similar ideological leanings to their own, but this partisan division within the court appears to be a relatively recent phenomenon. In ‘How Party Polarization Turned the Supreme Court into a Partisan Court’, professors Neal Devins and Lawrence Baum noted that conservative and liberal justices alike had been nominated by presidents of both major parties through the nineteenth and twentieth centuries, but that no such cross-aisle appointments exist today. Since 2010 and the retirement of the liberal-leaning (and Republican-appointed) justice John Paul Stevens, all nominations have been ideologically consistent along party lines for the first time in American history. “Today’s partisan split, while unprecedented, is likely enduring,” Devins and Baum wrote. Why The US Supreme Court Is Unique