Hamilton Explained: Appointing A Supreme Court Justice

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.

  1. 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

Supreme Court Crash Course: Marriage Equality Edition

There’s a lot of speculation about the decision the Supreme Court may make in a few months about marriage equality. Chances are, you took at least a high school civics/government class, and have a pretty good working understanding of how the Supreme Court works. You understand that they’re interpreting the constitutionality of a law. You know that they don’t just look to the language and intent of the Constitution, but also to how the Court has interpreted the Constitution in the past. This is called stare decisis, or standing by what is decided. Feel free to pull that one out at your next bar night if you want to impress nobody and go home alone.

Although you already know all of this, you might not know exactly which former cases will come into play and why. That’s where I come in. Here are some Supreme Court cases that may affect the marriage equality debate, what they’re about, and why they matter now – in a short-ish, for dummies package. Not because you’re  dummies, but because I took Con Law four years ago and I can’t even remember what I packed in my lunch this morning or where my keys are.

* Note: I may have gone to law school, passed the bar exam, and have “attorney” in my job title, but none of this is legal advice. I have an employer, and my opinions are mine, not theirs.

Griswold v. Connecticut

What it’s about: Birth control – but, in the grand tradition of Supreme Court cases, it’s about so much more than that. The story was that a Connecticut law (not often enforced)  completely banned contraceptives. Some brave people opened a birth control clinic in New Haven because hey, that law was seriously not enforced anyway. Well, and also because the Court had previously held that it was totally fine to outlaw birth control, and I think they had a hunch that the times were changing. Or a-changin’, as Bob Dylan would have me believe everyone talked at the time. They got fined $100 and the case made its way up to the Supreme Court.

How they got there: This established that the right to privacy is found in “penumbras” and “emanations” of other constitutional rights. So, it’s implied, pretty much.  A broad privacy right is implied in the Fourteenth Amendment (personal liberty, restrictions on state action) and Ninth Amendment (rights reserved to the people). This reasoning showed up about 8 years later in Roe v. Wade (you know that one! That’s the abortion one!). The Court declared an all-out ban on abortion illegal by reasoning that the Constitution and the cases that interpret it carry an implied right to privacy. There’s also some stuff about trimesters in there that really doesn’t have much to do with marriage. Although, now I am anticipating that we’ll get a misguided Google hit asking “what trimester should I get married in?” My vote is to wait til the baby is born because the only thing harder to  find than a good maternity prom dress is a good maternity wedding gown. Cue the misguided Google hits.

Why it matters: We’ll get there, but basically cases with more direct implications for the marriage equality struggle rely, in part, on an understanding that citizens possess a right to privacy.

Loving v. Virginia

What it’s about: Interracial marriage – but really, the basic right to marry whomever you choose (I mean, as long as one of you has an XX and the other an XY chromosome. OMG remember Kyle XY? Is that on Netflix? Loved that shit. ).

How they got there: A Virginia law prohibited mixed-race couples from getting married out of state and then living as a married couple in Virginia. Sort of like how now, gay couples can go from, say, Ohio to New York to get married, but Ohio won’t recognize their marriage. But this was even worse than that, as Virginia didn’t just fail to recognize the marriage – it was a felony. Here’s the big thing: VA tried to say that since both white and black people were affected by the law (You’re a felon! You’re a felon! Everybody gets a felony!) then it wasn’t racially discriminatory. The Supreme Court thought otherwise, and said that this law violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Check out this little gem from Justice Warren: “marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as… these statutes, classifications so directly subversive of the principle of equality at the heart of the fourteenth amendment, is surely to deprive all the State’s citizens of liberty without due process of the law… Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

Why it matters: Loving declares that marriage is a fundamental right. Laws that impinge on fundamental rights are subject to a harsher level of review by the Supreme Court than other laws. Standards of review crash course ahead:

  • The lower level is rational basis review – does this law have a reasonable relationship to a legitimate state interest? The anti-gay marriage folks would argue that the state has a legit interest in protecting kids from growing up in bad homes so that’s why you and your boyfriend/girlfriend can’t get married. I’m not even going to go there because we all know that’s ridiculous.
  • But if a fundamental right is at risk, the stakes get higher: strict scrutiny. Strict scrutiny asks whether the law was narrowly tailored to a compelling state interest. Loving matters because it seemingly gets us to the strict scrutiny level when the right to marry is in question. It’s harder for a law to meet “narrowly tailored” and “compelling state interest” than it is to meet “reasonably related” and “legitimate interest,” so if you support marriage equality, you’d really like to see strict scrutiny applied.
  • What happens if the Supreme Court says that there isn’t a fundamental right at stake here? There’s also a strict scrutiny review if a law targets a suspect classification. No dice: courts have tried like crazy to get around declaring sexual orientation a suspect classification, even though suspect classes usually include things you’re born with (race) and even some things you’re not (religion).
  • But even if we can’t get there, there is a level called intermediate scrutiny. If a law unfairly targets a quasi-suspect class, then we ask whether the law is substantially related to an important government interest. So, it’s harder for a law to meet intermediate scrutiny than it is to meet rational basis, but easier than strict scrutiny. The Supreme Court has not yet said that sexual orientation is subject to intermediate scrutiny, but the Second Circuit Court Of Appeals has, so who knows? But anyway, even if sexual orientation isn’t a suspect class, gender is. Loving says that a law that limits what race you can marry is racial discrimination. If anti-gay marriage statutes limit what sex you can marry, then maybe, just maybe, it is sex-based discrimination and gets intermediate review.

The Supreme Court is usually loathe to declare new members of the suspect and quasi-suspect classes, though. We may be more likely to see them say that laws against gay marriage don’t even meet the rational basis test, then stop there.

Lawrence v. Texas

What it’s about: Texas had an anti-sodomy statute, as did twelve other states, as recently as ten years ago when Lawrence was decided. Over 25% of the states in this country cared a whole lot about what you did in your grown-up time. Police walked in on two gents going at it, which usually would be the worst thing EVER anyway, right? But it gets a lot worse when instead of a bit of embarrassment, you get a misdemeanor. And the Supreme Court was like, nah, Texas, you can’t do that.

How they got there: Kennedy’s opinion rested on the right to privacy (Griswold! Roe! Thanks, ladies!). Lawrence struck down Bowers, a case that said that it’s okay to make laws against sexual conduct between consenting adults because condemning homosexuality is “firmly rooted in Judeo-Christian moral and ethical standards.” Basically, it’s fine to discriminate against gay people, because it’s our tradition! Like apple pie on the Fourth of July! Or, for those of us who aren’t that into pie, like those cakes with strawberries and blueberries that look like the American flag on the Fourth of July! Because that cake is GOOD.  After Lawrence, limiting what adults do behind bedroom doors is understood to be a violation of the Due Process Clause of the Fourteenth Amendment.

Why it matters: Note that they didn’t go with the equal protection analysis and invoke a suspect or quasi-suspect class. Just the legitimate basis test, which these laws failed gloriously. There’s no legit state interest in who you get busy with and when and how.

So what do I think is going to happen when the Supreme Court term is up this summer? Well, I didn’t discuss the DOMA challenge here, but I’m hoping that’s a goner. But as for the right to marry in California, my guess is that we’re probably going to get a narrow decision that doesn’t help many people outside of CA. I think the lower court’s holding will get reversed, but only on the grounds that the people who brought the challenge to same-sex marriage didn’t have standing. It just didn’t affect them, pretty much. I think we might have to wait for a case from someone with standing – a person who wants to get married and can’t. Or at least a state defending its law instead of an interest group from the state doing it. But I’m not putting any money on it or anything, because the Supreme Court can surprise you sometimes. And also because legally I don’t think I can put money on it.

Update: 6/26/13: Well, SCOTUS sure did keep us waiting til the end of the term, didn’t they? For anyone who follows these crazy kids, it’s no surprise (now can they PLEASE just let my girl Ginsberg retire?). Also, this is the 10-year anniversary of Lawrence v. Texas, which might make you a little emotional if major Supreme Court decisions make you happy-cry like they do for me.

As I predicted, SCOTUS held that the petitioners in Hollingsworth v. Perry, the prop 8 challenge, did not have standing to appeal the district court’s ruling to the 9th Circuit. Here’s why :”we have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”

But do you know what that means? Since they didn’t have standing to appeal the initial ruling on Prop 8, the district court’s decision stands. Which means…. Prop 8 is struck down! We revert back to the district court’s order, which was lovely. Here, a little light reading for you, Perry v. Schwarzenegger (actually one of the better opinions I’ve read lately): https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf

This isn’t as useful to the rest of America as an outright ruling on marriage equality would be. It’s state-specific. But, it’s a victory for California!

100 years ago, when suffragettes were doing their thing, there was a debate about whether to achieve equal voting rights state-by-state or by Constitutional amendment. The state-by-state thing was slow-going, and we all know how that ended up getting resolved. But for the time being, anyway, that’s what we’ll have to do with marriage.