The United States Congress is now taking up its constitutional duty to consider a nominee for a seat on the U.S. Supreme Court. The seat has been vacant for 13 months.
The US 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 authority to nominate a candidate for a vacant Supreme Court seat. The President usually tries to nominate a candidate who has a “correct” political philosophy. That doesn’t always work. Justices serve for life unless the justice retires for personal or health reasons. The justice may change his or her philosophy while serving on the Supreme Court. Excluding justices currently serving, the average tenure of a Supreme Court justice, during the last 60 years of the 20th century, was just over 13 years. A few served for more than three decades. During the average 13-year tenure, the court decides 1750 cases.
Since we cannot foresee the future and since the justices decide many issues including some that may be very controversial, a candidate who possesses good judgment seems a better choice than a candidate with a narrow political perspective. The world changes very rapidly requiring that we adjust our thinking. I have a photograph of a military training exercise that was conducted at Fort Selden, New Mexico, in May 1941. The military exercise was a horse-mounted cavalry charge. Seven months later, in December of 1941, the Japanese flew across the Pacific and bombed Pearl Harbor and Schofield Barracks. The best horse-mounted cavalry doctrine was instantly useless. People who could adapt to the new circumstances were required. In fact, many senior military officers were involuntarily retired to make way for officers who could adapt to the changing nature of warfare. Supreme Court justices also need to be able to think independently when new issues arise.
Interpretation of the US Constitution is required as our society changes. You can understand the need for continual interpretation by examining the Christian religion. There are more than 200 Christian denominations, all using the same Christian Bible, but each of them interpreting that bible differently. There is no supreme court for the Christian religion, no single entity that can interpret the bible for all believers. Or consider the Ten Commandments. A “strict,” conservative interpretation of the Ten Commandments would also require that a believer be a “pacifist.” “Thou Shalt Not Kill.” Do you support our military forces?
Delegates to the Constitutional Convention did consider religion. Some delegates wanted to make the Anglican religion the official religion of the United States. The delegates were well educated and well informed. They were aware that much human conflict had centered on religious issues. They wisely decided to keep religion out of the new United States government. Religious issues and intolerance were a source of violence and strife in many places during the 20th century, and that problem continues. A 1400-year-old difference of opinion between Shi’a Muslims and Sunni Muslims is one of the central problems preventing stabilization in the Middle East.
We are sometimes displeased by a Supreme Court decision. However, the Supreme Court customarily decides a Constitutional issue on the narrowest possible grounds. That always leaves some questions unanswered, but it also gives us an opportunity to adjust to the decision. To put it another way, the Supreme Court tries to avoid making decisions that could cause political earthquakes. One such political earthquake occurred when the US Supreme Court issued the Dred Scott decision in 1857.
When the Constitutional Convention convened in 1787 in Philadelphia, key members met privately and agreed that the issue of slavery would not be addressed during official proceedings. Had that issue been brought to the floor, the South Carolina delegates would have departed taking other slave states with them, and there would have been no United States. South Carolina slave owners were wealthy, and they intended to remain wealthy. Their wealth was produced by human slaves. The issue was not negotiable. The structure of the US Senate gave the slave states and non-slave states equal voting power. That voting balance was maintained by admitting slave and non-slave states to the union in pairs. By 1850 there were 11 save states and 11 non-slave states. Legislation known as the Missouri Compromise extended the concept. In 1857 the US Supreme Court was asked to decide whether a slave, Dred Scott, could be considered free and a US citizen as a result of living in a free state. The Supreme Court decided that issue, but then took a huge leap and declared the Missouri Compromise unconstitutional. That caused a political earthquake. It lent impetus to formation of a new antislavery party, the Republican party. Running as a Republican candidate, Abraham Lincoln was elected President of the United States. South Carolina and other southern states immediately decided to leave the union. That error of judgment cost more than 500,000 American lives. Our modern Supreme Court decides issues as narrowly as possible.
During the Great Depression, when a great number of Americans were in desperate circumstances, the US Congress passed several laws intended to reduce suffering and promote economic recovery. A very conservative Supreme Court struck down most of it. President Roosevelt asked the U.S. Congress to increase the number of justices on the Supreme Court. The news media called it “packing the court.” There was precedent for changing the number of justices; it had previously been done seven times. But Roosevelt’s request was not well received. However, a strange thing happened. The members of the Supreme Court got the message; they suddenly changed their collective philosophy and started finding depression era legislation quite constitutional. Had they not changed their thinking, we probably wouldn’t have Social Security.
Many Supreme Court decisions have shaped our destiny, but none have been more fundamental to a functioning democracy than freedom of speech issues. Democracy can be sustained only where people may express opinions freely, including dissenting opinions. The American Civil Liberties Union (ACLU) has often carried the ball for free speech by taking cases to the courts. As a result of those decisions, we can criticize our government, advocate changes and improvements, or just blow off steam. We can do that without going to prison. That makes America and a few other countries unique.
The Supreme Court has the authority to decide which cases it will hear. The Court hears only 1% of the cases that are presented. Some of those cases do not involve constitutional issues.
There are no formal qualifications for justice of the Supreme Court of the United States. You could be the next justice. Are you ready?
Jack Stevenson is retired, served two years in Vietnam as an infantry officer, retired from military service, 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). Currently, he reads history, follows issues important to Americans, and writes commentary for community newspapers.