Image 01 Image 03

Harris Poll: Americans Balk at Lifetime SCOTUS Appointments

Harris Poll: Americans Balk at Lifetime SCOTUS Appointments

Is it about “representation,” or the law?

A new poll from Harris Interactive suggests that 70% of Americans are uncomfortable with using a system of lifetime appointments to fill vacancies on our nation’s highest Court.

This shouldn’t come as a shock, and neither should that fact that millennials are far less likely to object to the idea of lifetime appointments (only 63% object) as compared to baby boomers (73%), “matures” (76%), and—perhaps most interestingly—Gen Xers (71%.)

A generational gap isn’t surprising because, for all intents and purposes, the Court is generally painted as some sort of next-level legislative body, expected to respond to the ever-fluid world views of pundits, protesters, and various voting demographics. (Don’t believe me? Review the news coverage from the Court’s rejection of DOMA.) As a card-carrying member of the bizarro generation tucked neatly between “GenX” and “Millennial,” I can testify to the fact that as we grow, so grows our exposure to various ideas about how government should respond to a diversifying society, and vice versa.

The problem with this viewpoint isn’t that it’s likely to change the system overnight—this would require a Constitutional amendment—but that it comes from a bloc of people who harbor a fundamental misunderstanding of the point and purpose of a Supreme Court.

The Harris Poll asked Americans to deliberate on the nation’s highest court, and found that despite two-thirds of Americans (68%) feeling it’s a crucial governing body for the success of the United States, nearly half of Americans (47%, up from 42% in 2010) say they are not knowledgeable about the Supreme Court confirmation process.

Just over half of Americans (53%, down from 58% in 2010) indicate being that they’re knowledgeable about the process, with one in ten (11%) saying specifically that they are very knowledgeable about it and just over four in ten (42%) saying they’re somewhat knowledgeable.

Less than half of those who have an opinion about how the court should be run know how we currently choose justices. Excellent. Then there’s this gem:

Seven in ten Americans believe that the makeup of the Supreme Court should fairly represent Americans’ diverse socioeconomic backgrounds (71%) and that it should fairly represent the demographic makeup of the United States (70%). Democrats are more likely than either Republicans or Independents to support both of these statements (Socioeconomic – 82% Democrats vs. 64% Republicans and 68% Independents / Demographic – 82% vs. 61% and 67%, respectively).

This is probably the most meaningless world view ever to be expressed by someone confronted with a survey, and it should serve as a warning to lawyers and scholars working against the growing influence of critical legal theory in America. The idea that the evolution of the common law should be artificially sped up to “keep up with the times” isn’t only ignorant—it’s dangerous.

The common law doesn’t just happen; it evolves—usually slowly. What the general public almost never sees is the exhaustive process of working a case through the court system, submitting briefs, and being granted cert. It’s not some sort of random process that ends with a filibuster on the floor of the Court where Scalia refuses to sit down until Ginsburg admits she was wrong about Ledbetter.

Those actually advocating for SCOTUS term limits claim that judicial independence is dead, and that the Court as a body has too much political power. Can you imagine what would happen if we had to appoint new justices every 18 months? Every 2 years? It would be like Cabinet appointments on steroids. And crack.

The legal profession is unique in that most honest approaches to interpretation involve the abandonment of the very things progressives are doing their very best to convince Americans are most important—world views, feelings, and “representation.” The purpose of Congress is to achieve equal representation; the purpose of the Court is to ensure that the deliberative body does not exceed its Constitutional bounds.

Trends in jurisprudence move like a pendulum. As justices change, so do philosophies, and the law evolves in time. We shouldn’t expect legal trends to move along with trends in activism in the media. The Constitution was not built on the whims of its drafters; neither should its progeny be built on the whims of an increasingly fickle public.

The Supreme Court begins its new term on Monday.


Donations tax deductible
to the full extent allowed by law.


Subotai Bahadur | October 5, 2014 at 1:30 pm

The reason people may be moving towards a representative model of the Supreme Court rather than a law model, is because for at least a generation the rule of law has been moot. If you cannot appeal to the written law with any hope of success, you appeal to someone who hopefully is a partisan for your interests.

Yeah, Amy, I have to accuse you a attempting a straw man argument here.

NO….BODY….EVER advocated for an 18 month term. We are talking about a term of a decade or two, even three.

This is hardly without precedent. Federal bankruptcy judges are NOT life appointments.

I’m frankly chary about the whole “life time” deal for ANY judge. Some of them go crackers (like any group of people) and that is not adequate to get them removed, necessarily.

I’m thinking that Stevens’ retiring was one of his greatest services to the nation, given his “soft head syndrome” as reflected in some of his post-retirement writings.

Plus, a LOT of people appointed should NEVER have been confirmed.

“Can you imagine what would happen if we had to appoint new justices every 18 months? Every 2 years?”

How about every 20 years, or 25 years max before forced retirement? That would be equivalent to 5 presidential terms. When the court was first established life spans were shorter, and 10 or 15 year terms were common, as the Grim Reaper swept up the Grim Deliberators before they became tedious and tiresome; and early resignations and retirements were more common — about 30% or so leaving the stage before they began tripping over their toes.

But now we’re stuck with justices seemingly forever – the sands of their minds bottom-heavy in the hourglass. Scalia’s been there 28 years already, Kennedy for 26 years, Thomas for 23 years (his mind in suspended animation most of that time), Ginsburg for 21 years and Breyer for 20. Does that mean we’re gonna be stuck with Roberts, Alito, Sotomayor and Kagan for another 20 or 30 or, Gawd, 40 years or more, as human life spans keep increasing?

A quarter of a century max, that should do it. Throw the bums out after that.

    Ragspierre in reply to jayjerome66. | October 5, 2014 at 2:56 pm

    Gawd, you are an IDIOT…!!!

    Justice Thomas is one of the brightest lights on the court, and one of its most prolific writers. Curiously, he is LOVED by even most of the loopy liberals, and certainly by the Court’s staff.

    mariner in reply to jayjerome66. | October 5, 2014 at 3:11 pm

    Whence came your idea that Thomas’s mind has been in suspended animation?

    It was a leftist trope for years that Thomas followed Scalia. Then came the book revealing that Thomas more often influenced Scalia rather than the other way around.

A mandatory retirement age might not be a bad idea, let’s say 80 years. But the survey documents the rapid deterioration in the quality of the American electorate and this is a threat to our way of life. Our children know less and less about our Constitution and how our government is supposed to work. It would be interesting to learn how much immigrants who have become citizens really understand.

the purpose of the Court is to ensure that the deliberative body does not exceed its Constitutional bounds.

Not if you give much weight to “originalism”, it isn’t.

The purpose of the Supreme Court was to resolve disputes between the states, and conflicts between laws. And the Chief Justice had a role during impeachment trials. That’s about it.

John Marshall, a Federalist appointed by outgoing President Adams to be the SC’s fourth Chief Justice, extended the concept of resolving conflicts between laws to the idea of unconstitutionality of Legislative acts in Marbury v Madison, a case involving another appointment by Adams which had not been honored by the new Sec. of State, James Madison. The idea was not outlandish, if the Constitution is considered to be a law, and furthermore a law taking precedence over acts of the legislature. Then it’s reasonable to consider how acts of the legislature might conflict with the Constitution, and be nullified accordingly. But President Jefferson seems to have realized that the principle could lead to mischief in the future, and his Democratic-Republicans tried to exercise some control over the SC by impeaching Justice Samuel Chase, an ally of Marshall. (Apparently the Democratic-Republicans didn’t feel it practical to take on the rather more formidable Marshall directly.) Nevertheless, the attempt to impeach Chase failed, the Marshall court survived intact, and the idea that the Court can second-guess the Legislature about its own business in a head-to-head dispute hardened into both law and custom.

But the first three Chief Justices, including John Jay, seemed to do just fine without any such notions.

Actually I vote for ending ALL elected and appointed federal positions after 12 years. That would give the politicians an adequate retirement and limit the amount of POWER a politico could acquire.

Actually, I’d be in favor of making sure the idiot general public had to pass some kind of civics test to vote, and that’s not thinking in racial terms. All races, genders and age groups are unbelievable illiterate about this country.

Would also like to see the voting age raised, but that’s because the 18 year olds are more immature and oftentimes less educated than the high school grads of a even generation ago.

OF course, that’s never going to happen, Democrats figured out how to keep their power and move the country Left.

I think I’d prefer a competency test (looking for dementia). I may not like who is on there, but I’d prefer small changes. The idea being that the the Founding Fathers didn’t have to deal much with folks out living their minds so they didn’t put in a check for that. Pretty common today.

The Supreme Court does not decide cases based on the Constitution, it decides them based on Supreme Court precedent.

Yes, there should be term limits for SCt justices. Look at how the Senate was set up at the very beginning, a first class, a second class, a third class, by random selection.

SCt 18 year terms. Initially, positions/initial length of term, allocated by chance [current justices would be assigned by chance, max 2 4 6 8 10 12 14 16 18 remaining years]. Every 2d year one term is up. No justice stays longer than 18 years-max of 1 18 year judicial term per justice (except for the first batch). Every President nominates 2 justices for full terms per presidential term; every Senator votes on confirmation of 3 justices for full terms per senatorial term. If a justice dies or resigns during his or her term, the replacement serves only the remainder of that term.