In this Very Special Edition of Hamilton Explained, we aren’t explaining lyrics from Hamilton. Instead, we are using Lin-Manuel Miranda’s lyrics to explain a hot topic of the day: the whys and hows of appointing a Supreme Court Justice when one dies, retires, or resigns. Hamilton lyrics are in red and underlined.
A Supreme Court justice is appointed for life. Sort of.
Supreme Court justices are Article III judges – federal judges whose powers and responsibilities are governed by Article III of the U.S. Constitution. The Constitution provides, in relevant part, “[t]he judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.” (U.S. Const., art. III, § 1).
Most justices appointed by Washington died or retired within several years.
John Marshall, a historical figure who deserves a rap musical of his own, was appointed by John Adams (“President John Adams” – Good luck). So was Bushrod Washington, among others. Both served for over 30 years. A precedent was set: Justices were able to serve until death. (For your love, for your praise
And I’ll love you till my dying days).
But to be honest, a life term was a bit shorter in the early 1800s. Sure, historical lifespan ranges are skewed by high infant mortality (Every other founding father gets to grow old), but the fact is that starting in the 20th century, justices lived considerably longer. John Adams (sit down John, you fat mother – [BLEEP!]) may not have predicted that. (See, I never thought I’d live past twenty; Where I come from some get half as many.)
Well … I should say that Justices serve for life – if they want – as long as they exemplify “good behaviour” (You keep out of trouble and you double your choices). IRL, only one justice has ever been impeached.
2. There are reasons for the justices to sit on the bench until death, retirement, or resignation.
First of all, this alleviates partisan pressures – Justices don’t have to appease the party that nominated them (don’t let them know what you’re against or what you’re for) or make their decisions based on what will get them elected to, say, a senate seat in the future (if you stand for nothing, Burr, what will you fall for?).
Alexander joins forces with James Madison and John Jay to write a series of essays defending the new United States Constitution, entitled The Federalist Papers. The plan was to write a total of twenty-five essays, the work divided evenly among the three men. In the end, they wrote eighty-five essays, in the span of six months. John Jay got sick after writing five. James Madison wrote twenty-nine. Hamilton wrote the other fifty-one!
… in one essay, Hamilton wrote: “nothing can contribute so much to its firmness and independence as permanency in office”.
When a Supreme Court Justice can make his or her decisions based on their clearest interpretation of the Constitution and judicial precedent, they are (we hope) making decisions that will benefit American law for centuries to come, instead of their own career (What is a legacy? It’s planting seeds in a garden you never get to see.)
3. Eventually, some people retire…
If I say goodbye, the nation learns to move on
It outlives me when I’m gone
While Washington set the precedent for the two-term limit, we tend to think of Marshall as the originator of the life term for Supreme Court justices, even though that’s not strictly true.
and others die.
You have no control: Who lives, who dies, who tells your story … or which Justice dies during your Presidential term, it goes without saying.
4. Let’s take it back to 6th grade: there are three branches of government operating under a system of checks and balances.
I’ve been reading Common Sense by Thomas Paine … which argued against the system of checks and balances. And another thing, Mr. Age of Enlightenment, the drafters of the Constitution (I was chosen for the Constitutional Convention!) had to revisit the philosophies (like Paine’s) that lead them to break from England in order to create a new system of government (If we lay a strong enough foundation, We’ll pass it on to you, we’ll give the world to you).
The result: a legislative, executive and judicial branch organized under the Constitution and its ever-expanding list of amendments (The constitution’s a mess -So it needs amendments). It’s full of contradictions, So is independence.
Basically all of American government is organized under the mantra of “check yourself before you wreck yourself.” And, the judiciary doesn’t need to tailor its decisions to the whims of the current legislature (My power of speech: unimpeachable).
5. When a vacancy is created by death, resignation, retirement, or impeachment (sorry, Samuel Chase), the President nominates a new Supreme Court Justice.
Despite those tweets you saw from your one Tea Party Uncle, this isn’t at all up for debate and is actually an enumerated power in the Constitution. Your Tea Party Uncle probably claims to be a strict constructionist, so he should love this. “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court…” (U.S. Const., Art. II).
There’s never been a case where the President has left nomination up to the Senate, nor could he, because again, the President nominating the Supreme Court is legit written in the Constitution (I’d rather be divisive than indecisive).
Other than the President choosing the nominee, there aren’t really any other enumerated requirements. Unlike the President, the Supreme Court justice does not need to have been born on American soil – A place where even orphan immigrants can leave their fingerprints and rise up. Typically a nominee will be trained as a lawyer, and often is a sitting District Court judge.
Another thing: you get love for it. You get hate for it, You get nothing if you… Wait for it, wait for it, wait! Which is to say, the President has ALWAYS said “I am not throwing away my shot” and appointed a new Justice – because we NEED the Judicial branch in America, and I’m not just saying that because it’s my own pet branch of government, but also because the Constitution says that it’s his job.
6. The Legislative branch is responsible for vetting and confirming this Justice.
When it’s time for the Senate Judiciary Committee to hold confirmation hearings, they are typically subject to lobbying from special interest groups and their electors. You cannot discount how influential lobbyists can be: at worst, holding funding over a senator’s head, but at best, educating them on possible implications of their decisions on segments of the U.S. population (No one really knows how the Parties get to yess The pieces that are sacrificed in Ev’ry game of ches We just assume that it happens But no one else is in The room where it happens.)
During the hearings, the nominee is questioned by the Committee (Ask him a question: it glances off, he obfuscates, he dances). They cover the nominee’s basic history (What’s your name, man?) and judicial philosophy (He started retreatin’ and readin’ every treatise on the shelf), but nominees may refuse to answer questions.
The Committee then votes on whether the nominee’s appointment should go to a Senate vote with a positive, negative, or neutral vote. Most disputes die, and no one shoots and also most nominees do go to a vote on the Senate floor.
If they don’t reach a peace, that’s alright. The Senate has only formally rejected 12 nominees after a full confirmation hearing; the last time that happened was in 1987.
But if the Senate DOES fail to confirm, they still don’t get to nominate a candidate because that is the president’s job. (But they don’t have a plan, they just hate mine!)
7. In the meantime, what happens to cases decided by the dead Supreme Court Justice?
While the Senate is twiddling its thumbs and playing pick-up sticks, a slate of pending Supreme Court cases hangs in the balance. So if they’re tempted to drag out the process for political reasons… um… Are these the men with which I am to defend America?
The late Justice does not get a say in future votes, even if he indicated how he was going to vote (Uh… do whatever you want, I’m super dead.) With the number of Supreme Court Justices at an inconvenient eight, any cases with a 4-4 split are bound to the lower courts’ decision. The Court is permitted to continue hearing cases, but most appellees don’t want their cases heard by an even-numbered court – although you can always do what I do: play Fantasy SCOTUS with upcoming cases and predict where the votes will fall. Some cases seem almost guaranteed for an even split; others may be unaffected. The Court may vote to hold over cases that are likely to split 4-4, which is obviously a massive delay in cases that have usually been working their way up the chain for years by the time cert is granted.
8. The Justice is confirmed; America continues.
Supreme Court Justices pledge their careers – literally until death – to upholding the U.S. Constitution and the rule of law as they see it. Death doesn’t discriminate, Between the sinners And the saints It takes and it takes and it takes.
And we keep living anyway – the cases approved for this term must be decided. There is no stop-point with justice. Our founding fathers knew it, and we know it – there is no decision that the Court makes on ANY issue that will be its last one. Jurisprudence evolves as our nation does. Carrying on short an Associate Justice is simply not an option.
However, there is a long list of qualified nominees, a President with the express power to appoint one, and a Senate full of politicians who we have elected because they have vowed to approve qualified nominees – and at that time, another Justice will don the robe and continue the work.
America, you great unfinished symphony, you sent for me