Succession of Supreme Court Justices at Law & Society Blog

Succession of Supreme Court Justices

Published by Manfred Gabriel July 6th, 2005 in Law and Society

In response to a recent post by Hanno Kaiser, in which Hanno argued that the Supreme Court overpowers the law (see also this follow-up), Daniel Solove over at Balkanization has this to say:

In reality, the Supreme Court doesn’t wield a lot of power. Its bark is far louder than its bite has ever been. … The Supreme Court receives such attention because it is a dramatic symbol.

I won’t go into assessing the power of the Supreme Court (although I’ll say that it’s hard to ignore its power in such cases as Bush v. Gore), or into comparing the Supreme Court’s power to the executive or the legislature. But it is clear that the Supreme Court’s power exceeds that of any other court and that by virtue of being such a dramatic symbol it is the focal point of political attempts to use the law to partisan ends. That alone is sufficient to raise questions about the neutrality, professionalism, and balance of the court.

In that vein, consider O’Connor’s resignation. By resigning during Bush’s term, at a time when the Republicans control both houses, while the Democrats’ force as opposition is at a nadir, O’Connor is affecting the choice of her replacement: She knows who’ll be picking her successor and who controls the Senate for the confirmation hearings. The death of a justice in office is of course sufficiently unpredictable. But in chosing the timing of retirement, the out-going justice is given power to affect the choice for his or her successor. (I am not implying that O’Connor timed her retirement for any reasons other than personal ones.)

A fix would be to postpone the appointment of retiring justices’ successors until after the next election. (The analogy is to the 27th Amendment, which makes a law by which Senators or Representatives raise their own pay effective only after an intervening election.) Outgoing justices would not have an incentive to alter the timing of his or her retirement, nor the power to indirectly affect the choice of successor. The power of the president to appoint Supreme Court justices would not be affected, since the power attaches not to the person of the incumbent president but to the office of the presidency. My proposal is another exploration of how the time factor can be used to prevent the political capture of the Supreme Court.