It’s a bit complicated by the fact that some of the procedures are different, but basically, yes, rulings tend to be pretty definitive. The landmark ruling on abortion that settled the matter once and for all and vacated all abortion laws was 5-2:
The civil rights of gay couples was settled in 1999 with an 8-1 ruling:
The “reference” questions from the federal government on endorsing same-sex marriage were answered in 2004 with unanimous rulings:
Does each generation think judicial activism was just invented when they were babies?
Read up on the Lochner era: Legislating from the bench in the name of classical liberalism, *well *before Roe.
What’s CSS?
The US Supreme Court doesn’t give advisory opinions, either. The Supreme Court of Canada does.
Doh! What I meant to type was SCC but buggered it up.
The issue about which you are ranting aside, I call bullshit on the requirement that any right to privacy must be enumerated in our Constitution. Bring yourself up to speed on the ninth amendment.
Discussion on the nature of the US supreme court and how it differs from other jurisdictions is incomplete without the political systems other courts are a part of. The US is fairly exceptional in that the population is very invested in the union’s constitution, the constitution is very difficult to amend and was created to serve a very different animal than what the US is today.
I could write that the Norwegian supreme court has one high justice and 19 judges that explicitly should be diverse in background. That the current members range from 47 to 69 years of age (the high justice is 59). Cases are decided by a panel of five or eleven judges except in extremely rare cases where the whole court weighs in.
But our supreme court determines cases for a single sovereign nation with complete power over political subdivisions. No pesky states making their own laws, just counties and municipalities that at most can regulate within limits set by the national state. Our constitution can be outright rewritten (although all changes so far have been piecemeal and step-wise) by a process similar to any law, with the exception that the two steps of voting for acceptance of a suggestion, and voting to pass that suggestion (no changes allowed at this point) have to happen in the first three years of two consecutive four year parliamentary periods and that they require a two-thirds majority.
The Ninth Amendment does not confer any particular rights. It merely says that there are other rights that may be possessed. I think in Enlightenment thought, those are ‘natural rights.’ ‘Natural Rights’ are vague and undefined, but I think that it’s safe to say that courts shouldn’t be ruling on what they construe as natural rights. The Supreme Court has traditionally held that they are interpreters of the Constitution, not ethical philosophers who make up rights when they feel like it - else we end up in a situation where really there is no governance at all on the Supreme Court. They could just pick a side and make up a right to justify it. The fact that the Ninth Amendment wasn’t even used as justification for a Right to Privacy (The ruling said it was implicit due to the 14th, the 9th was not mentioned. In a later case, Justice Douglas even specifically said the 9th does not confer enforceable rights.) seems to tell me that they agree.
What makes the ‘Right to Privacy’ so darned confusing is that it doesn’t actually protect our right to privacy at all. It doesn’t prevent NSA spying or the various PATRIOT Act provisions. It doesn’t protect your search histories or data mining about you. It doesn’t even protect government interference in other medical procedures (The government doesn’t let your doctor prescribe you heroin for a cold as an example or Oxycontin for a splinter.) Pretty much all that the right to privacy protects is your right to have an abortion (and not just any abortion, apparently your right to privacy only lasts until about 20 weeks into pregnancy-it’s a very ephemeral right that you don’t really possess until you conceive and then disappears in 20 weeks or so. It’s a very sneaky right that way. - Of course, I would be remiss in saying that it actually doesn’t protect the right to an abortion at all, but rather the doctor’s right to give an abortion which makes it even stranger, but I digress.)
Bottom line is that even if the result is good, the way they got it was not. It was judicial fiat. They wanted a result and twisted the law to get it and I don’t think that it was unreasonable for people to be mad about it. As I said earlier, I’m fully convinced that we’re in the mess we’re in today completely due to Roe and what’s more, I think that if Roe didn’t exist, abortion rights wouldn’t actually be too much different today. They’re still nearly impossible to get in red states and they’re pretty easy to get in blue states which isn’t a whole lot different than in 1973, only now we have huge numbers of single-issue polarized voters disgruntled with the government that we might not have had if the Court had allowed legislatures to duke it out.
That still would reduce the uncertainty, but not by enough, in my opinion.
We should have an amendment that requires one justice to retire every two years (preferably nowhere close to an election) and set the number of justices to nine (instead of a fluctuating number which is what we have now). That would effectively set a term limit of 18 years, regardless of their ages. I think 18 years is plenty. The amendment should also specify what happens if the Senate fails to vote on the confirmation. I suggest a time limit (perhaps 30 days?) during which the Senate should vote to confirm the President’s nominee and, if the Senate fails to vote during the time limit, the nominee is confirmed by default. That way, every time we elect a President to a 4-year term, we know in advance that the President will get to nominate exactly two Supreme Court justices, no more and no less.
I would like to know how other countries decide when it’s time for a justice to retire. I’ not seeing that discussed much here. Do they have term limits? Age limits? Or do they just stay on until they die or quit, like in the US?
Constitutional Court of South Africa:
The Judicial Service Commission (JSC) draws up a shortlist of three more candidates than there are vacancies to fill (i.e. 4 candidates for a single vacancy). The JSC includes sitting judges, representatives of the executive, members of the governing and opposition parties in Parliament, and representatives of practising lawyers and law professors. The President then appoints from the shortlist, after consulting with the Chief Justice and the leaders of other political parties.
On the question of term and age limits: The judges have a single term which expires after 12 years or at age 70, whichever comes first. If they have had less than 15 total years of service as a judge (in any court), it is extended to 15 years or age 75, whichever comes first.
The Constitutional Court is powerful; it can strike down primary legislation and executive actions. Its decisions have, amongst other things, banned the death penalty, legalised same-sex marriage, and recognised indigenous land rights (much like Mabo in Australia). Two years ago it delivered a scathing judgement of the President and Parliament, finding that they had failed in their responsibilities.
The appointment process - especially the JSC hearings - can get a little bit political, but certainly not anything like what you see in the US.
But you don’t have a Charter of Rights in Australia, so that’s a big difference from the SCC. It’s giving decisions on Rights-issues which tends to trigger the most attention from the public.
Ah - found that article I mentioned, quoting former Supreme Court of Canada justice Iacobucci:
With respect to retirement in Canada, SCC judges (and all federally appointed judges) must retire at age 75.
In practice, it’s not uncommon for them to retire after 10 or 15 years on the Bench. Justice Deschamps, for example, retired 10 years to the day after she was appointed: August 7, 2002 to August 7, 2012.
Getting back to the OP’s question about qualifications, to be appointed to the SCC, you have to be a member of the Bar with 10 years’ standing, or a provincial superior court judge, or a judge of the Federal Court or Federal Court of Appeal.
There is an exception: being on the Federal Courts doesn’t qualify you for an appointment to one of the three Quebec seats on the SCC, even if prior to appointment to the Federal Courts you were a member of the Barreau du Québec.
Australia: Must retire on attaining the age of 70 years
Netherlands: Mandatory retirement at 70
Canada: SCC judges must retire at age 75.
Spain: Mandatory retirement at 70
France: Retirement at 65
South Africa: Retirement at 70/75
Japan: Retirement at 70
United Kingdom: Retirement at 70
Does any country other than the US allow lifetime appointments?
Instead of using age requirements we should use fixed length terms. The best one that I have seen is a justice gets confirmed for a 15 year term. At the end of the term the senate can vote yes or no for an additional 10 year term. So 25 years max on the bench. The terms are long enough that they go beyond any one president or congress but not so long that there are people serving 40+ years.
That would probably work, but how would you transition from what we have now? Would the 15/25 year term apply retroactively to all the current justices, or only to future appointments? Either way, it seems to me that this still leaves the problem that you might have several Justices retiring within a single President’s term and no Justices at all retiring in another.
That’s why I suggested that someone has to retire in every odd-numbered year (whoever has the most seniority). Every President gets to nominate exactly two Justices in each 4-year term and no Justice ends up serving more than 18 years. The only part I haven’t figured out is how to handle an unexpected retirement or death. How about this. In the case of an unexpected vacancy, skip the next scheduled replacement. So, every July in every odd numbered year, the longest-serving Justice retires, unless there has already been an unexpected retirement within the previous 24 months.
And we should definitely put rules in place to prevent the Senate from pulling another Mitch McConnell stunt of delaying the vote for more than nine months. I suggest the Senate has 30 days from the nomination to vote up or down and if they don’t vote at all then the nominee is confirmed by default.
If you want to see the impact of the retirement age on the Canadain Court, take a look at the wikilist: List of Justices of the Supreme Court of Canada.
Scroll down to the bottom where the incumbents are shown on a gold background. The most senior puisne justice on the Court is Justice Abella, appointed in 2004. After that, the remaining eight justices, including the Chief Justice, were all appointed since 2011. So, eight of the nine justices appointed in the past seven years.
There’s more there than just a fixed retirement age. In Canada, they don’t seem to consider that they have to stay on until their retirement age at 75. Many retire earlier than required, often after ten or fifteen years.
By contrast, if you take a look at the list for the US Court, four were appointed before the most senior Canadian judge (Abella, appointed in 2004), and eight were appointed prior to the second most senior Canadian judge (Moldaver, appointed in 2004).
Those stats show quite a different turn-over rate.
To put the non-partisan nature of the SCC in context, 6 out of the 9 judges on the Supreme Court were appointed by a Prime Minister I absolutely loathed, who lead a party I doubt I would ever vote for. It doesn’t bother me in the slightest that 66% of the SCC were appointed by this PM, though, because of how thoroughly non-partisan Canadian judges are.
For an American audience, imagine that 6/9 judges were appointed by Bush or Obama (depending on your political leaning) and this not making any difference to how the US Supreme Court would decide cases.
Also shows an impressive alumni.
Of the 27 CSS Justices appointed since 1984, 25 are still alive.
Do the retired justices tend to still be involved in public life, judicial commissions etc or do they drop below the radar?
It’s mixture. some just retire, but others keep doing things. From that list: