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The Supreme Court Justices are Getting on in Years – What Does this Mean for America?

The US Supreme Court is an important pillar in the American system of government.  The judiciary, along with the legislative and executive branches of government, provides the foundation and legitimacy of American policy, domestically and abroad.  The ideological leanings of the nine Supreme Court Justices have a lot to do with the political outlook of American policy decisions.

These days, the constitutionality of political action is heavily scrutinized, and it is important to consider just who is making the important decisions in the American legal system.  The Supreme Court has the final say on contentious domestic decisions such as gay marriage, voter ID laws, Obamacare, the death penalty, and second amendment rights.  A skew within the Court to the left or right has a dramatic affect on the American political landscape, and the prospect of aging Judges on the bench has raised the issue of whether or not we will see an ideological shift before the end of Obama’s second term.

The judges that comprise the Supreme Court are appointed by the president, approved by the Senate, and are expected to serve out their term until death, but retirement and resignation are both permissible.  The justices appointed often share the political ideology of the president, but they are by no means bound to the will of the administration in power.  Supreme Court justices have “gone rogue” in the past; the most notable of which being Chief Justice Earl Warren, who was appointed by Dwight D. Eisenhower in 1953.  Under Warren’s direction, the Court skewed ideologically to the left, although Warren himself was expected to be conservative.  Liberal-leaning justices have been responsible for some of the most landmark cases in US history, such as Roe v Wade (1973), which legalized and regulated abortion.  There have also been important conservative decisions, such as Citizens United v Federal Election Commission (2010), which prohibited the government from restricting political expenditures of independent corporations or interest groups.  The current justices on the bench are pretty evenly divided, with four liberals (Sotomayer, Breyer, Ginsburg, and Kagan), four conservatives (Alito, Thomas, Scalia, and Roberts), and one swing vote (Kennedy).  There exists a delicate ideological balance that many political analysts claim is threatened by the advancing age of several justices.

Ruth Bader Ginsburg, the figurehead of the left-leaning justices, is the oldest on the bench, and at 80, is speculated to retire in 2015.  Recently, she has made waves in the press by claiming she has no plans for immediate retirement.  Her statements have elicited criticism from the left, which has argued that if Ginsburg retires voluntarily while Obama is still in office, she won’t jeopardize the liberal-conservative balance that is so crucial to the effectiveness and objectivity of the court.  Should a Republican take office after Obama’s term is over, he would appoint a conservative judge, thus tipping the ideological balance of the Court to the right.  Recent Supreme Court decisions illustrate the importance of an equally-balanced judiciary.  There have been several controversial decisions across the ideological spectrum: in June, the Court struck down the Defense of Marriage Act, a 1996 act which prevented the Federal government from recognizing gay marriage.  Also in June, the Court eliminated a key aspect of the Voting Rights Act, which forced states with a history of discrimination to get federal approval before making changes to voting laws.  Each of these decisions, celebrated and derided by politicians and citizens alike, was achieved with a majority of 5-4.  The justices on the bench of the Supreme Court are narrowly divided, and with upcoming cases regarding affirmative action and the role of religious practices in government, the makeup of the Supreme Court could be an indication of what constitutional law will look like for the remainder of Obama’s term and beyond.

Considered thusly, criticism of Ginsburg’s refusal to retire seem more valid.  Why should she, the bastion of the left side of the bench, so selfishly want to serve out her term, when she could retire and ensure continued liberal representation amongst her peers?  Her response to such criticism has served, instead, as a reminder to Americans of the sanctity of the judiciary.  In an interview with USA Today, she is quoted as saying: “As long as I can do the job full-steam, I would like to stay here…Last term was a good example. I didn’t write any slower. I didn’t think any slower. I have to take it year by year at my age, and who knows what could happen next year? […] Whether that will be true at the end of next term, I can’t say.”  In shifting the focus of the prospect of her retirement from political strategy to her capabilities as a judge, Ginsburg has elevated the discussion as a whole.  She has reminded critics on the left and skeptics on the right that the Supreme Court is not a political tool to be used in furthering the policy goals of the current administration, but to act as the final interpreter of constitutional law at the federal level.  The question of the retirement of Justices Ginsburg, Kennedy, and other septuagenerian members should only be considered within the framework of their mental capabilities and professionalism. The ideological divide is inarguably an important aspect of the democratic process behind Court decisions, but it is secondary to the autonomy of the justices themselves.  If Ginsburg et al are strategically relieved of their positions to make room for younger counterparts, it would undermine the role of the Court as an credible and independent entity in US government.

– Katherine McNamara


Featured photo: AttributionNoncommercialNo Derivative Works  Let Ideas Compete, Creative Commons, Flickr

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