Sorry for the non-descriptive title, but while I was typing a more descriptive one I realized it was going to be overly long.

My understanding of the USSC appointments is that

  • they are for life
  • only the US President can appoint a new member
  • only the Senate can confirm the appointments

and this comes from the US Constitution.

As a comparison, I have the Italian top Constitutional Court

  • appointments are with a term (9 years, single-term)
  • to maintain balance within the three branches of government, each branch appoints a third of the members (with the President being part of the Executive branch)

This also is detailed in the Italian Constitution.

What has been the political discussion/process that has brought the US to the current rather than other processes?

  • 2
    Why do you think the Italian (or any other) system should have been adopted? There's no incentive needed to keep the status quo and your question does not seem to address an incentive to change it.
    – DonFusili
    Sep 18, 2018 at 9:18
  • 5
    @DonFusili I am not attempting to say that. I am asking why /how the US got their current status quo.
    – Federico
    Sep 18, 2018 at 9:24
  • 1
    John Oliver in his most recent episode pointed out how US SCOTUS terms (at what point judges would voluntarily retire on their own accord) and even the general understanding of "lifetime" has changed since the time of the Founders. The US is, indeed, unique in this respect, but perhaps a better question is why doesn't anyone try to change it, vs how it came to be, given the differing circumstances now. So I guess I differ from the opinions above. Sep 19, 2018 at 15:04
  • 1
    John Oliver is not particularly thorough in his assessments. I've come to view him as truthy, to use a term from another late night entertainment host.
    – user2578
    Mar 11, 2021 at 17:33

3 Answers 3


Why Is The U.S. Federal Court Status Quo The Way It Is?

The short answer is that this is path dependent. The status quo was put in place in 1789 before anyone had extensive experience with large non-monarchical governments, and lifetime appointments seemed like a good idea at the time.

It is much harder to amend the constitution of the United States than it is to do so in almost any other country. It takes a large, geographically homogeneous bipartisan majority to do so (two-thirds majorities in both houses of Congress, and ratification by three-quarters of the states in the predominantly used method). When there were just 13 states, Senators weren't directly elected, and the nation's politicians had a great deal of common ground in the wake of the shared experience of the Revolutionary War against Britain and a broad consensus of shared support for George Washington as the first President, it was not obvious that it would be so hard to amend the constitution in the future, or that the federal government would evolve so much that a desire to do so would be as pressing as it is today.

But the U.S. has also, for its entire history, had partisan divides that have a strong geographic component, so that a requirement that a constitutional amendment be supported by a two-thirds majority in the U.S. Senate, or a three-quarters majority of state legislatures, provides either major political party in our de facto two party system a veto over any proposed constitutional amendment.

Nobody drafting the U.S. Constitution in 1791 (when the Bill of Rights was adopted) would have bet a nickel that it would still be the governing document with only minor amendments, 230 years later in 2021, in a country with 50 states spanning past the Pacific Coast of North America, with 100+ times as many people as it had then, a much broader franchise, and a much more powerful central government. In 1789, when the terms of federal judges were established, there was no Bill of Rights for judges to adjudicate. In 1791, the Bill of Rights was a restriction on a tiny federal government, not something that applied to all governments. Modern legal theory ascribes the application of the Bill of Rights to state and local governments to the adoption of the 14th Amendment in 1868, but the federal bill of rights wasn't applied to state and local governments with any regularity for another 50 years, and the lack of routine constitutionally based individual rights litigation made the federal courts for the first 120 years or so of the U.S. Constitution, made the federal courts significantly less important.

No Republic this large without a monarchy of this scale had lasted that long in the past without being overthrown by revolutions or invasions or becoming autocratic, and no one really expected that it would last that long this time.

This wasn't an unreasonable expectation. The previous Articles of Confederation, that was the first constitution of the United States, lasted only about a decade. The survival of the U.S. Constitution and nation in the wake of the Civil War, commenced 70 years after the Bill of Rights was adopted, was a close thing. The French Revolution started the year that the U.S. adopted its constitution and underwent numerous swings between monarchies and new constitutions for Republics in the same time frame. Most other new democracies in world history had coups or at least major constitutional overhauls in their early years of democratic self-government, even in Latin America and Liberia, where the original national constitutions of these countries were closely modeled on the U.S. Constitution.

But, because U.S. Courts have been quite influenced by political views for at least the last century and a half, if not longer, it has usually been in the interest of one party or the other to resist such a change.

No one has managed to secure a consensus to change the status quo prospectively, and not for want of trying, after the importance of the federal courts grew clear in Reconstruction (applying federal statutes attempting to end slavery and related discriminatory laws) and starting again in the early 20th century.

Pre-Civil War, the U.S. government was almost entirely funded with customs duties, and both federal legislators and federal judges routinely left their posts mid-term for more powerful positions in state and local government, and in business. There were no meaningful federal immigration laws, there was no federal welfare state, there were few federal protections for individual rights, and there were few federal criminal prosecutions.

Notably, in state courts in the U.S., lifetime appointments are rare. It is no coincidence that this coincides with the fact that state constitutions are much easier to amend than the U.S. constitution.

Also, the appointment of state judges is less politically sensitive because a much smaller share of the state court docket than the federal court docket, deals with public law issues and constitutional rights. The state courts have relatively much less partisan deluges of debt collection actions, evictions, foreclosures, probate administrations, divorces, apolitical criminal cases, and mundane personal injury cases like slip and fall and car accident cases.

Why Are Constitutional Courts The Way That They Are?

Italy and most other countries with constitutional courts established them only after World War II, with much more historical experience to draw upon. And, the people who drafted constitutions with such courts envisioned those courts as expressly political, and so were conscious of the need to provide politically sensitive structures for them.

Judicial review of legislation for constitutionality is an American invention, and in the U.S., unlike most civil law countries with constitutional courts, it is a power shared by all judges, not just judges of the U.S. Supreme Court or a constitutional court. A municipal traffic judge can hold that a law is unconstitutional in the U.S., for example, and is required to do so if it clearly is unconstitutional.

In contrast, countries with constitutional courts don't have judicial review of the constitutionality of legislation and executive action by ordinary judges, so there is a concentration of political issues in a single court, making the necessity of political considerations more obvious.

Also, unlike the U.S. legal system, those countries handle issues of public law (i.e. the law of interactions with state entities by other state entities or individuals) in quasi-judicial bureaucracies distinct from the ordinary courts for the most part.


The Constitution of the United States of America was created no just for the majority interest, but also for the minority interest.

The founders cared a lot about not creating too strong of a federal government, but also did not want to create too weak of a federal government as the government had essentially failed under the Articles of Confederation. To prevent a future failure the founders generally erred on the side of caution (stronger government), but put checks in the system to prevent abuse.

The Judicial Branch was not seen as that strong of a branch. It was not given the power to spend money nor to exercise force (technically bailiffs are court officers but this is not much). For example, the U.S. Marshals are an agency of the Executive Branch and are tasked with enforcing the Judicial rulings of the United States; however, this power is checked by the President as they are part of the Executive.

In recognition of this inherent weakness of the Judicial Branch, while at the same time importance of the branch in preserving liberty, Justices and Judges were given lifetime appointment. This allows them to withstand political pressures of the day and remain concerned with interpreting the law in an independent and just manner.

There is also a sense of finality to the Supreme Court. Once a constitutional issue is decided it remains the law of the land unless there is a constitutional amendment (not exactly that in practice, but in theory).

The reason something similar to the Italian system was not adopted was because then a sufficiently motivated political alliance would be able to change the judges to their favor in a relatively small amount of time (9 years). The idea in the courts was not to balance the separate branches, but to create an entirely different branch composed from judges chosen by different administrations and in a sense generations.

In the United States this system allows the Justices of the Supreme Court and other courts to remain independent and most importantly issue relatively stable rulings throughout the years.

  • 4
    This answer could be improved by providing some sources for these statements.
    – Philipp
    Sep 18, 2018 at 15:25
  • @Philipp I am a bit busy at this moment, but will try to update within the next few days.
    – Viktor
    Sep 18, 2018 at 23:23
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    "Once an issue is decided it remains the law of the land unless there is a constitutional amendment" - Only if they're deciding a constitutional issue. Many times they are simply interpreting a statute, and Congress could overturn their interpretation by simply passing a new law.
    – D M
    Mar 10, 2021 at 23:50
  • @DM you are correct. Edited the answer.
    – Viktor
    Mar 11, 2021 at 0:06

In the U.S. all federal judges serve lifetime appointments. The reasoning behind this is to encourage judges to be more impartial in their rulings since they don't have to campaign for reappointment/election. This is somewhat successful if surprising or unpopular rulings are used as a metric, a recent example being John Roberts upholding Obamacare.

The reason judges are appointed by the President and confirmed by the Senate is to maintain the system of checks and balances within the branches of government. The other branches both have power over who becomes part of the judicial branch, and the judicial branch can overrule laws and polices or the legislative and executive branches. The Senate was originally intended to be a more direct representation of the States as a whole rather than the people like the house of representatives. This was changed with the seventeenth amendment so that Senators were also elected by the people, but the role of the senate was left intact. The original intent of the Senate was to be a more state focused body with a longer term outlook than the house, that wouldn't be as reactionary as the house which more directly represented the will of the people. This design was borrowed heavily from the British Parliament where the House of Lords is roughly analogous to the Senate. The President and Senate were chosen to isolate the choice of judges from being too closely controlled by the people.

  • 2
    "they don't have to campaign for reappointment/election" Ok, apparently I am missing some context here. In Italy no judge will ever campaign for that, as it does not exist. (and for the top court the problem is solved by being a single-term appointment with no possibility of re-appointment). Could you expand on why that has been chosen as a solution to that problem?
    – Federico
    Sep 18, 2018 at 12:56
  • In a common law system, such as the US, judges may be elected to the position by the people. In fact, most states have elected judiciary or mixed appointment/elected Judiciary. The lack of this at a Federal Level means that the Judge is not beholden to a political ideology that would cause him/her to rule in favor of political parites. While SCOTUS does have a 5-4 conservative lean, they are about the only government branch where frequent decisions against the party occurs in a clear majority.
    – hszmv
    Sep 18, 2018 at 14:03
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    @Federico It's worth remembering that the authors of the US constitution were not handed the Italian constitution and asked to make changes to it (the US constitution is about 150 years older). The lifetime term of US federal judges is intended to prevent the other branches from stacking the court.
    – Deolater
    Sep 18, 2018 at 14:15
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    @Deolater fair enough. Yet they have come up with this system as the solution to the problem "how to make a top court that will be (somehow) independent", and I am trying to understand why they though this was a good solution.
    – Federico
    Sep 18, 2018 at 14:23
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    @Deolater An intent which was easily circumvented, as judges and Justices can just strategically retire, making it in principle relatively easy to ensure a particular ideological balance almost in perpetuity (the randomness of death is the spanner in the works, though as we learned from McConnell that's easily circumvented too). Sep 18, 2018 at 15:59

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