A SEA OF CHANGE AT THE HIGH COURT

Water, water, everywhere,
And all the boards did shrink;
Water, water, everywhere,
Nor any drop to drink.
The Rime of the Ancient Mariner, Samuel Taylor Coleridge

With the conclusion of the most recent Supreme Court term, all eyes looked to the Court for what was expected to be a number of vacancies on the nation’s highest court. At the conclusion of the term the sitting justices on the United States Supreme Court were Mr. Chief Justice William H. Rehnquist, Mr. Justice John Paul Stevens, Ms. Justice Sandra Day O’Connor –the first ever female Justice appointed to the High Court, Mr. Justice Antonin Scalia, Ms. Justice Ruth Bader Ginsburg, Mr. Justice Stephen Breyer, Mr. Justice David Souter, Mr. Justice Anthony Kennedy and Mr. Justice Clarence Thomas. Many of these justices, however, were advancing in age and rumors were running rampant that one or more of them would be retiring. All but one of the current Supreme Court Justices are 65 or older – Justice Clarence Thomas is 57 – and Chief Justice William Rehnquist who was 80, had cancer, and of course has since passed away. On July 1, 2005, Ms. Justice O’Connor informed President George W. Bush that she was resigning.

Most of the students in the various Legal Assistant and Paralegal programs are cognizant that the Supreme Court of the United States was established pursuant to Article III, Section 1 of the United States Constitution. Section 1 reads in relevant part “ The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const., Art. III, Section 1. The Supreme Court, interestingly enough, is actually the only federal court initially established by the United States Constitution. The other federal courts, namely, the District Courts, Circuit Courts of Appeals, Military Justice Courts, Bankruptcy Courts, Tax Courts, etc., are all creations of Congress pursuant to the power invested in Congress by Article III to establish “ such inferior courts as Congress may from time to time ordain and establish.” U.S. Const., Art. III, Section 1.

Legal Assistant and Paralegal students also probably recognize that Article III, Section 1 of the United Sates Constitution further provides that the Article III justices – those justices who serve pursuant to Article III of the United States Constitution – are to have life tenure once confirmed by the Senate. The precise language is “ The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their services a Compensation… ” It is the phrase, “ shall hold their Offices during good Behaviour ” that is the basis for life tenure for Supreme Court Justices. Although the phrase itself seems to be somewhat ambiguous or at least indefinite, it has been generally and universally interpreted by the Supreme Court to mean that Article III judges may hold their judicial offices for life unless removed from office by impeachment and conviction. See United States ex rel Toth v. Quarles, 350 U.S. 11, 15-16 ( 1955 ). Alexander Hamilton, one of the principal proponents of this provision in the Constitution, stated “ if then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Alexander Hamilton, The Federalist No.78 ( 1788 ). It is this provision, life tenure, which makes the issue of the appointment of Supreme Court Justices so vitally important to the electorate and underscores the importance of the electorate paying attention to who is elected both at the senate level and the executive level.

To understand why who sits on the Supreme Court is so vital to every American one need only ask themselves a few questions: Is prayer permissible at a High School commencement? – ask the Supreme Court; can Congress ban political ads that mention a candidate by name? – ask the Supreme Court; may a state execute a 17-year old murderer? -- ask the Supreme Court; Florida can’t seem to get its votes counted right in the 2000 Presidential election, who is going to be the President? -- ask the Supreme Court; is it permissible for a citizen to burn the American flag? -- ask the Supreme Court; can a local government take away the private property of one citizen and give it to another private party solely for the purpose of the second party developing the land in such a way as to generate more tax revenue for the government and perhaps more jobs for its citizens? -- ask the Supreme Court; can the Ten Commandments be displayed on public property? -- ask the Supreme Court; can a woman if she chooses decide to terminate her pregnancy? -- ask the Supreme Court. Each of these questions, and hundreds of others, ultimately find their way to the Supreme Court and are often decided upon by the Supreme Court. And ever since the decision by Chief Justice John Marshall of the United States Supreme Court in 1803, in the case of Marbury v. Madison, 5 U.S. ( 1 Cranch ) 137, 2 L.Ed.60 ( 1803 ), the determinations of the United States Supreme Court have been deemed final and the law of the land. What the Supreme Court says matters!

Since the United States Supreme Court has the final say on so many issues that are integral to the daily lives of all Americans, it would seem axiomatic that all Americans would take a keen interest in who sits on that Court. That interest should only be heightened by the fact that, as stated above, the appointments to that Court are for the life of the appointee. Yet, I have been astounded to discover that many students, for one reason or another, do not vote in general elections. Well the person elected President in the general election, will, when a vacancy opens on the Supreme Court, nominate a replacement for that Court that may shape the future of the Court for generations to come. As will the people elected Senators confirm the President’s nomination for a replacement for that Court – which as stated may shape the future of the Court for generations to come. In order to fully appreciate the gravity of “for generations to come” you need to understand how long these jurists occupy their seats on the nations Highest Court. For the first 20 years of this Republic’s life, between 1789-1808, justices on the Supreme Court averaged 13 years in service. Lower court judges averaged between about 10 to 15 years in service. In contrast, between 1989 and 2000, the average term for Supreme Court justices doubled, to about 26 years. For the lower courts (again on average), judges serve between 18-22 years before opening a seat for another life-tenured appointment. And, as is familiar, the current Chief Justice has held his position for more than 30 years. Resnick, “ Judicial Selection, Independent Jurists, And Life Tenure”, University of Pittsburg School of Law, Jurist Legal Intelligence On-Line. Therefore, these jurists will be making decisions affecting every aspect of your daily life for quite some time!

Regardless, of one’s political predilection, with such nominations so directly affecting the daily lives of every American, participating in the election process virtually becomes essential to one’s existence and self-preservation. In fact, I would argue that it is perhaps singularly the most American and democratic right that we have as citizens. It is the only vehicle you have to attempt to ensure that the individuals who will make the final determination on what will be “ the law of the land”, share your views, beliefs and value system. Again, it matters not whether you are Republican, Democrat, Independent, Libertarian, Progressive, Green or otherwise, it matters only that you exercise a right that was deemed so fundamental by our forefathers that they risked property and reputation to secure. A right for which our present troops, in the words of Abraham Lincoln, now give “that last full measure of devotion” to preserve. ( The Gettysburg Address, Abraham Lincoln ).

Again, the current vacancies on the Supreme Court and possible future vacancies make this point all too clear. Ms. Justice Sandra Day O’Connor, while considered a conservative – she was appointed by President Ronald Regan – was often considered a swing vote on the Court. That is to say she did not always vote staunchly conservatively, she would often cast the deciding vote in a case that would be considered on the liberal side. The replacement of her with either a staunchly liberal Justice or a staunchly conservative Justice would inexorably tip the balance of the Court in one direction or another. Of course the President initially nominated Judge John G. Roberts, Jr. to replace Justice O’Connor, and now with the death of Chief Justice Rehnquist, Judge Roberts has been re-nominated for that position. Not enough is known about Mr. Roberts to make a definitive statement at this point as to whether he will be more or less conservative than the Justice he may replace. However, as stated earlier, the seeds for the selection of Ms. Justice O’Connor’s replacement or Mr. Chief Justice Rehnquist’s’ replacement and the confirmation of those replacements by the Senate have long been planted with prior elections of the President and Senators. In the future, if one does not care to tend to the planting of the seeds for the crops, one should not be heard to complain about the fruit you are left with to eat! Moreover, if one is not careful, one might find oneself adrift at sea (in America), with water, water, everywhere ( your many rights ), and not a drop to drink ( unable to execute or enjoy your rights ).

Dr. Merriweather is the Legal Coordinator at
The Orlando Florida Campus of The
Centura Institute

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