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Beyond politics: Why Supreme Court justices are appointed for life

By Roger Cossack
Law Center Contributing Editor

July 13, 2000
Web posted at: 10:09 a.m. EDT (1409 GMT)

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I have always believed that what the Supreme Court decides has a greater impact on our day-to-day life than anything our state legislatures do, or even the activities of the Congress. For in the final analysis our representatives can pass all of the laws they want or see fit to, but if the Supreme Court does not sign off with its stamp of approval, the legislation, no matter how well meaning or necessary or popular, is finished.

As we all know, there are nine Supreme Court justices who are appointed for life by the president with the advice and consent of the Senate. By appointing the justices to life terms, the framers of the Constitution attempted to insulate them from political pressure. They wanted the justices to be able to make their calls almost in a vacuum, certainly a political vacuum.

They wanted the decisions to be made on well-reasoned principle and law, and if the justices were on the bench for life they would not be beholden to any group or vulnerable to the electorate who might take issue with their decisions and decide to vote them out of office.

There is, of course, criticism of these life appointments. Several states have chosen to make judges, even state Supreme Court judges, stand for election every so often. Their theory is that the judiciary, like all other representatives of the people, should have to answer to the people by getting votes. Several years ago, California voters ousted Chief Justice Rose Bird and three other justices.

The issue? Well, these justices were perceived as putting their own feelings about capital punishment ahead of the law, and there was some evidence to support that theory. Time after time the California Supreme Court would reverse death penalty verdicts and spare the defendants' life. It didn't help that Chief Justice Bird was an outspoken critic of the death penalty and apparently the public perceived the other two justices as jurists who believed the same way she did. Right or wrong, the public spoke and the three were taken from the bench.

But federal court appointments have always been for life, and their duration creates a political legacy that leaves vestiges of power in presidents who are long gone from office. Theoretically, a jurist should not be involved in the political spectrum. Yet, when a president appoints members of the Supreme Court, it is only reasonable to believe that he or she will appoint people who reflect his or her view or political agenda. After all, the president has been voted into office on a platform that the citizens agree with and therefore the president should do all he can to make sure that his philosophy is put into place.

What better way to do it than to appoint jurists who agree with him. The problem is that the president can, at the most, serve for eight years, and Supreme Court jurist scan serve as long as they live.

The best thing for the country would be if the Supreme Court could issue 9-0 decisions on every case. There would be bright line instruction for the Congress of what they can do and what they can't and the reasons therefore. But, because of the way we appoint our judges, as well as the carry over of different philosophies of different presidents, often time we get decisions that are decided by a mere one vote. At the end of this term, the Supreme Court decided that a state "late-term abortion regulation," was unconstitutional by a 5-4 decision and also decided that the Boy Scouts could refuse to allow homosexuals to participate, also by a 5-4 decision.

It is predicted that the next president could appoint up to three new Supreme Court judges during his term. Three new judges could change how we think about civil rights, abortion, states rights, voting rights. Three new judges could markedly redefine our legal landscape as we now view it. So during this election when many are criticizing the candidates as two sides of the same coin, remember what their lasting impact will most likely be: the Supreme Court. Their judges will be there a lot longer than they will.

CNN Legal Analyst Roger Cossack is a Law Center contributing editor and co-host of CNN's "Burden of Proof". Send comments to him by writing to roger.lawcenter@cnn.com.

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