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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

We the People: Lifetime Supreme Court terms were created to keep justices insulated from political pressure

This artist sketch depicts Mississippi Solicitor General Scott Stewart speaking to the Supreme Court on Dec. 1.  (Dana Verkouteren)
By Julia Shapero The Spokesman-Review

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: Supreme Court justices serve for life. Why?

The U.S. Constitution does not include any formal mention of a life term for Supreme Court justices. It simply states that the justices “shall hold their Offices during good Behavior.”

In practice, however, this means the justices effectively serve for life or as long as they choose.

“It’s basically a lifetime appointment unless you can impeach a judge,” said Katie Ball, who teaches at the University of Idaho College of Law in Boise. “But just to be clear, it doesn’t actually say that in the words of the Constitution. But for over 200 years, that’s been the understanding.”

These life-long terms were envisioned by the framers in response to previous experience with the judicial system under the British monarchy, Ball said. Before the Revolutionary War, judges in the colonies were beholden to the king who paid their salaries and decided how long they’d serve, she added.

“That gave them a real incentive then to do what the king wanted,” Ball said. “It gave undue influence to a monarch.”

Alexander Hamilton argued in the Federalist Papers for an independent judiciary that would uphold the Constitution and remain immune from the day’s politics, she said.

“That’s why Hamilton, in Federalist No. 78, wanted them insulated from public opinion,” Ball said. “We can change our legislators, by voting people out and voting people in, but the court is supposed to be insulated from political pressures.”

Public confidence in the Supreme Court, however, has reached new lows in recent years, as concerns over partisanship have increased. A Gallup poll from September showed that approval of the high court had fallen to 40%, the lowest since Gallup began collecting data on the topic in 2000.

The Supreme Court heard oral arguments earlier this month in Dobbs v. Jackson Women’s Health Organization, a case that could be used to weaken or overturn the landmark abortion case Roe v. Wade. Roe found that the Constitution protects a woman’s decision whether to continue or terminate a pregnancy.

Justice Sonia Sotomayor focused some of her questioning on the ways in which the court’s decision in the case could impact a growing perception of partisanship.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor said during the hearing on Dec. 1 . “I don’t see how it is possible.”

Ball said she believes it is more an issue of public perception than one of partisanship and division. Unanimous rulings were more common than any other type of decision between 2000 and 2018, with 36% of rulings decided 9-0 compared to the 19% decided 5-4.

“I believe that a lot of people think the court is politicized,” she said. “And that impacts how they feel about whether justice is being done. But I think if you look at the decisions, there are more unanimous decisions than there are divided decisions. The problem is the divided decisions are coming in cases that a lot of people care about and are paying attention to.”

Ball added that even if the court is not as politicized as it seems, the perception that it is remains important.

One contributing factor may be the use of what has been termed the “shadow docket,” Ball said. The shadow docket is an orders docket that looks at requests for emergency relief. Since the justices do not write opinions in these cases, no explanation is offered for the decision, she said.

This can make it hard for people to understand the decisions from this docket, she said.

Ball questioned whether releasing the reasoning would actually help given that most people don’t have time to read Supreme Court decisions.

Ball added that she remains hopeful there are ways to improve public perception of the court as an independent and impartial judiciary.

“I’m a big proponent of an independent and impartial judiciary,” she said. “I think the founders had good reason for selecting that mode of selecting judges and the process of trying to keep them independent from the political whims. I think it helps uphold the rule of law. But to do that, we really need people to believe in the system.”