“Fill the seat! Fill the seat!” roared the crowd as President Trump addressed his supporters. Their demands were met with a suave Trump-style statement, “I will be putting forth a nominee, and it will be a woman.”
These remarks were made in regards to the vacant seat of the Supreme Court, that has become a central issue for the November election in the US. This Supreme Court seat was occupied previously by Ruth Bader Ginsburg, who was part of the left-wing minority in the apex court. However, her demise on September 18, 2020, has left a seat of the Associate Justice of the Supreme Court of the US empty; one of the most powerful positions in the country.
How is a new Associate Justice appointed?
The process is relatively simple on paper; the president nominates a candidate, the US constitution does not specify any age, profession, professional qualification or citizenship requirements for this. Which means, the president can nominate anyone at all, in the past 6 US Supreme court Justices have been foreign-born and one had not formally passed highschool.
The president is required to make a formal nomination, after which the Senate Judiciary Committee holds hearings that have traditionally lasted 60 days. In these hearings, the Committee interviews the nominee about crucial legal issues and their positions on it to discern how they would vote. In recent tradition, the Committee has also opened itself to information by the public to uncover any crime of grave importance that may have been perpetrated by the nominee. This is how the case of Dr. Christine Ford was brought to the senate committee against the nomination of Bert Kavanaugh on the ground of sexual assault.
The Committee is then required to make recommendations to the Senate; it can make a positive recommendation, a negative one, or stay neutral as with no recommendation. As highlighted in the Kavanaugh hearings, the recommendation of the Committee is not binding; the senate vote (often on partisan lines) decides the approval of the nomination.
After the Senate has approved of the nomination, the nominee must take an oath by the President to be formally inducted as an Associative Justice of the Supreme Court of the United States.
Why is this important?
The US is a two-party system, with a society that is polarised on extremely partisan lines, which means, political platform is only afforded to people through the two recognised parties, and voters largely think in binary lines. This is not to say that political groups within these parties do not exist; Sanders is one example of an outlier using the Democratic platform to shift the debate further left. But most of the inner group movements die out, and the two parties always define the lines of the political fissure in the US. Given this scenario, most legislation is done through bipartisan support; successful policies require both parties to assent. This does little to change the political landscape and fails to bring any major socio-economic shift in the lives of the American public.
In the presence of such a vacuum, the Supreme Court has historically played a major role in the socio-legal evolution of the US. Some of the major changes in US law have come from the apex court. This includes cases such as Brown v. Board of Education (that declared segregation in schools unconstitutional), Miranda v. Arizona (that protects individuals against self-incrimination), or the United States v. Windsor (which requires all states to recognise same-sex marriage legally). In a political landscape that is evermore divided on ideological grounds, both sides see the supreme court as a way of guiding future policy and legal landscape of the country. Furthermore, the Associate Justices and the Chief Justice serve for life, which grants them a long career, allowing them to solidify their interpretations of particular principles of the constitution.
How do cases reach the Supreme Court?
Unlike most other legal systems, the right to appeal does not extend to the supreme court in the US. The federal court system has three main levels: district courts (the trial court), circuit courts which are the first level of appeal, and the Supreme Court of the United States, the final level of appeal in the federal system. There are 94 district courts, 13 circuit courts, and one Supreme Court throughout the country. Courts in the federal system work differently in many ways than state courts. The primary difference for civil cases (as opposed to criminal cases) is the types of cases that can be heard in the federal system. Federal courts are courts of limited jurisdiction, meaning they can only hear cases authorised by the United States Constitution or federal statutes.
So given that a case fulfils two pre-requisites, is has been heard before a circuit court and is a case of federal law, a party can file a Petition for Writ of Certiorari. The aim of taking up a case by the supreme court is based on two things; issues of national importance or having uniform federal law interpretation. The latter refers to a scenario where cases with similar legal principles are argued before two different circuit courts with different verdicts, to clearly interpret the law the supreme court would entertain the writ of cert. A case qualifying under this criterion has a higher likelihood of being entertained. However, to reach the apex court, it must pass the rule of 4; meaning any 4 of the 9 supreme court justices (8 Associate Justices and a Chief Justice) want to hear the case. If the U.S. Supreme Court “grants cert,” it has agreed to entertain the case. Certiorari is usually granted less than 100 times per year.
Currently, there are two left-leaning judges, two moderate judges, and four conservative judges. So the new vacancy is of vital importance for the democrats to secure. Suppose the Republicans are successful in nominating an uncontroversial nominee for the conservative bloc. In that case, it might be a challenging next decade for the democrats to make and implement liberal or left-leaning policies with a conservative supermajority supreme court bench. As of now, the Republicans have a majority in the Senate and on September 25, 2020, Donald Trump has nominated Amy Coney Barrett to succeed Ruth Bader Ginsburg as Associate Justice of the Supreme Court of the United States.