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Related: Doesn't the system of the Supreme Court oppose justice? and Why is the debate on the composition of the U.S. Supreme Court so politicised?

In following the aftermath of Justice Ruth Bader Ginsburg's death, I notice the process for appointing a new justice appears to be very politicized. I don't understand why. I would have thought justices decide on purely legal questions: X is either legal or illegal. Y is either constitutional or unconstitutional. Those are different questions compared to "X should be legal or illegal", which necessarily involves personal opinion.

This picture of the Supreme Court of the US doesn't seem to mesh the answers in the linked questions. It seems Justices of the Supreme Court are expected to make new law. So for example if they were to say women should be allowed to have abortions without excessive government restrictions (Roe v. Wade) then the government doesn't have a choice, they have to make it legal for women to have abortions without excessive government restrictions.

But if that is the case, then it seems logical for the Justices of the Supreme Court to be democratically elected. After all, they are no different from lawmakers - they are making new law for people to adhere to.

Why aren't the Justices of the SCOTUS democratically elected in elections similar to the upcoming presidential election?

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    "Legislating from the bench" claims seem rather a different issue than what you ought to be getting at, and seems mostly presented to advance Republican/Right-wing gripes thereof (note that, viewed from the other angle, it's the conservative judges that are doing this). What the courts have done in the last 50 years or so is rather different a subject from what the plan was ~250 years ago. – zibadawa timmy Sep 21 at 4:34
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    "So for example if they were to say women should be allowed to have abortions without excessive government restrictions" They didn't say that women should be allowed to have abortions with excessive government restrictions. They said that the constitution does allow them to do so. The constitution says, among other things, that a person shall not be deprived of liberty without due process of law. If the SCOTUS says that forcing someone to carry a pregnancy to term is a deprivation of liberty, that's an interpretation of existing law, not legislating from the bench. – Acccumulation Sep 21 at 5:39
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    One simple, technical response is that the United States doesn't have any single national democratic election for a nationwide office; we have one for each state... – jeffronicus Sep 21 at 14:46
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    What could possibly be more politicized than electing Supreme Court Justices? You also have to consider that the present extreme politicalization is largely an artifact of the person doing the appointing. – jamesqf Sep 21 at 16:02
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    @Allure - I think the answers are not poor; they address parts of the reasons for which you asked the question and clarify some of the issues. I just don't see answers that address your questions, directly: "Why aren't justices elected? Paraphrasing your questions: Why did the framers chose appointment over election of federal judges and justices? I have yet to see that answer. – Rick Smith Sep 22 at 2:04
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Judges don't make law as such, they interpret existing law to decide how it applies to a novel situation. (As some commenters pointed out, case law has a strong role in the common law system, but as I understand it those decisions don't come out of thin air, they're based on prior laws and interpretations.) At the level of a supreme court, that is usually at an abstraction level which might make it appear like making new laws. Questions which end up there are not did this defendant take the money or not but more along the lines of can the police find probable cause based on a facial recognition algorithm?

In my example, the judges wouldn't have invented the concept of probable cause. They are the ones who decide what it means in a modern world. Failure to do that would lead to scores of criminals claiming "I did it but I did it online, all the laws are only against doing it offline." Or something similar. Look at companies like uber trying to circumvent both employee protection and cab licensing laws by claiming that they are not a cab company, just an intermediary.


And on a different note, it is generally accepted as democratic practice to have both directly and indirectly elected officials. The President of the United States is elected by the Electoral College, not by the people. Same for the Vice President, who gets to cast tie-breakers in the Senate.

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    The notion that judges interpret the law rather than make it is just sophistry at the level of the supreme court. The only cases that reach the supreme court are (or should be!) ones where existing law is not capable of being "interpreted" in any way that can be agreed on by the majority of reasonable and fair-minded people. So a small group of people are chosen to act as oracles whose arbitrary decisions can not be challenged. If that doesn't count as "making law" for all practical purposes, then nothing does. – alephzero Sep 21 at 13:24
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    @alephzero: Of course the decisions of the supreme court can be challenged! The way to overturn supreme court decisions is to either pass new laws or to amend the constitution. It's not uncommon for supreme court justices to rebuke congress, saying effectively, "we know you might dislike this decision, but that isn't our problem. If you don't like it, pass new laws." – Brian Sep 21 at 14:19
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    @Brian another way to challenge a supreme court decision is to argue that it was wrongly decided, most likely because the litigants failed to advance a particular argument, and hope that the supreme court agrees. This does happen from time to time. But, o.m., the statement "judges don't make law" is just incorrect. The court routinely creates law. This is a fundamental basis of the US legal system, given its roots in English common law. For example, while the court did not invent "probable cause," it did invent "reasonable suspicion." – phoog Sep 21 at 17:41
  • @phoog, the judges had to decide if the 4th Amendment rights were violated and in their analysis they articulated the standard of reasonable suspicion. Case law, but not out of thin air. – o.m. Sep 29 at 14:57
  • @o.m.: You are underestimating the extent of common law in the US system. For example, the Eleventh Amendment's literal text just says that states can't be sued by citizens of other states, but the Court has interpreted that to imply an entire doctrine of state sovereign immunity, which appears nowhere in the Constitution. – Kevin Sep 29 at 20:31
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Because this isn't how the judiciary is supposed to work.

In general: The role of the judiciary is NOT to create or reinterpret laws, but to be an impartial referee ruling based on the laws set out by legistature. By this standard it doesn't make any sense to elect justices democratically, which is why the appointment of new supreme court justices used to be a fairly unspectacular even until the 2000s (with some exceptions like Justice Thomas).
In fact, a direct democratic election would corrupt this whole concept as, I repeat, it is not the purpose of the judiciary to give the electorate what they want or "make things right", which is the job of the democratically elected legislature, which is supposed to do so by implementing or changing laws.
If you had judges appealing to the public by promising them stuff to get elected to the supreme court, you could just throw the whole concept of seperation of powers out of the window.

The actual problem in the U.S. judiciary goes a bit deeper:
Republicans and Democrats generally don't appoint conservative and progressive judges, but -very broadly speeking- Originalists and Living Constitutionalists.
Which one of those judicial philosophies is the "right one" is not a question that is relevant for this topic and it would quickly derail this thread anyway, therefore I won't go into any detail here about what those philosophies are about. Important is:
From an optimistic view each respective party deeply believes in their associated judicial philosophy, from a cynical view each respective party deeply prefers the likely outcomes of their associated judicial philosophy, the overall consequences however remain the same:

What the american public sees is that the outcome of supreme court decisions depends heavily on which justice has been appointed by which political party, which is simplified/distorted by the media into the concept of "conservative/progressive justices" and fueled by politicians accusing each other of Judicial Activism. Therefore, in times of a deep political divide in the american public, each supreme court justice appointment is seen and treated as the equivalent of a constitutional convention, hence all the ugliness that can be witnessed.

The point that I want to make by elaborating all of this:
The problem is not how supreme court justices are appointed, but the underlying judicial conflict about how the constitution is supposed to be interpreted.

I am not that familiar with the topic that I could greatly elaborate on the reason for the conflict, but if I had to make assumptions, the two reasons I would give are the following:

  1. The U.S. constitution is very old, hence conflicts about how to interpret it are inevitable.

  2. In the U.S. it isn't exactly codified for judges which judicial philosophy is to be applied, contrary, as it seems, for example in my own country (link in german), hence you have different philosophies emerging with increasingly diverging outcomes.

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    The role of the judiciary is NOT to create or reinterpret laws, but to be an impartial referee ruling based on the laws set out by legistature If that's the case why such a furore over who gets appointed? They are after all impartial, their personal leanings should not matter. – Allure Sep 21 at 10:44
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    I elaborated on that in the lower part of my answer. – AuronTLG Sep 21 at 10:45
  • What's the difference between "reinterpreting" and interpreting a law? The latter is a primary function of the judicial system. Where is the line between the two? – phoog Sep 21 at 17:46
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    Well, where to draw the line is precisely the matter of contention between the judidicial schools. – AuronTLG Sep 22 at 7:39
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    In addition to the US constitutino being very old, I would add that it is also very brief and very vague. The German Grundgesetz has 146 enumerated articles with some amended in-between (e.g. article 12a) and some removed but the former slightly outweighing the latter. This, of course, is able to regulate stuff far clearer than the 7 articles and 27 active amendments of the US constitution. – Jan Sep 29 at 7:40
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Checks and Balances

The framers of the Constitution felt it was best to have lifetime appointments to federal courts, including SCOTUS, and this is granted in the Constitution. The basic reasoning for this is they felt it would ultimately ensure their independence from political pressures, thereby enabling an honest analysis of the law by insulating them from the fear of reprisals from the government or the people. A Justice that can be voted away (or into the court) is a Justice that can be pressured to rule in ways that will garner them the most votes. A Justice who sits for a limited term, but then may still need employment afterwards, may also twist the law to reach conclusions that are better for his long term prospects. This was seen as unacceptable, so they removed any sort of direct democratic process from the Federal judiciary (though note that State courts can have elected judges, even on their State Supreme Court, and some do), and gave lifetime positions to eliminate post-Justice career pressures.

Having eliminated the people from the equation, we're left with the three branches: Executive, Judiciary, and Congress (Legislative). They didn't want to give such appointment powers to the Judiciary itself, as that makes it difficult to prevent any corruption etc. in the Judiciary from spreading and undermining the nation. So it had to be a power of the other branches. The House was basically just the people again, so they're eliminated (or at least would have to work in tandem with the Senate). As the Federal government was one that governed States moreso than people, it's natural to want to involve the Senate, where each state is equally represented, in a Federal level matter. They ultimately decided the best balance was achieved by sharing the power to determine Justices between the two options left: the Executive (President) decides who gets to be considered, and the Senate determines whether to accept or reject the decision.

There's certainly a lot of debate from time to time, right now in particular, about whether the nature of SCOTUS appointments should be changed. Most focus on term limits but preserving the current appointment scheme. Why none of that's been done boils down to the usual reasons: it requires an amendment, amendments are hard and require vast and broad support, and such support simply doesn't exist. For much of its history SCOTUS has maintained a revered position in the people's perceptions. To this day most people continue to view SCOTUS as the most trustworthy, apolitical, and even pro-their-side-of-things, part of the Federal government.

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  • It should be possible to have lifetime appointments and elections, no? – Allure Sep 21 at 5:00
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    @Allure Sure, just as we could base it on a pie-eating competition, but that's not what they went with. Many of the framers were quite afraid of direct democracy. The less populous states in particular hated the idea, because they feared it meant they'd have essentially no real voice and the nation would go in whatever direction the populous states wanted, even if that was really bad for the smaller states. The federal organization is ultimately one of equal, sovereign states; not the peoples within them. – zibadawa timmy Sep 21 at 7:15
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    I think the reason why this and other similar questions are being asked is that there is a very distinct notion right now that the Supreme Court is not an apolitical body, and that the Republican party is doing everything in their power to ensure that the court will work in their favor. – Kai Sep 21 at 13:43
  • I believe I’ve read that it’s possible to implement term limits without an amendment if the limitation is on being seated on the Supreme Court, and thereafter the justice remains a federal judge but is on a lower court. But I’m not 100% sure that’s what I read, nor have I checked whether that was accurate. – KRyan Sep 21 at 14:59
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"After all, they are no different from lawmakers - they are making new law for people to adhere to." Justices do not make new laws. They interpret existing ones.

I think the short answer to your question is that "this is what is written in the constitution".

A slightly longer answer is that Justices do not represent any particular group of people (like, say, a state in the US), so if there is an election, it should be a "popular vote" and the idea of popular vote, again, contradicts the constitution (because small states will be discriminated against).

Here is a text containing more arguments "for" and "against".

And here is a text from CNBC about the same topic.

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So starting with your title question :

Why aren't the Justices of SCOTUS democratically elected ?

Well they are democratically elected, but it's not a full plebiscite.

What happens is, as you know, candidates are proposed and they are vetted and either accepted or rejected by the people's democratically elected representatives.

Why it was designed that way is, I think, that to select someone with suitable qualifications it was thought necessary to have the candidate reviewed by well educated and knowledgeable people. Remember that at the time the US constitution was created the average person would have had little education, practically no knowledge of law or what defines an expert lawyer from a run-of-the-mill lawyer. The logic goes that, in that day, the people most likely to perform that function were your elected representatives who could be expected to have a reasonable education, a solid interest in law (even if it was in many cases just to break it themselves :-) ) and who had a mandate from the ordinary voter to make decisions for them.

Changing that requires a constitutional change, so unless that happens the ordinary US voter is stuck with the system they have courtesy of the supposedly all-knowing founding fathers.

In following the aftermath of Justice Ruth Bader Ginsburg's death, I notice the process for appointing a new justice appears to be very politicized. I don't understand why.

It's a democracy - everything is politicized. It would likely be even worse if a full plebiscite were required as it would be like a super-sized version of a presidential campaign (for a for-life appointment to a position of considerable power !).

If it was just a straight decision of one man without oversight (as I'm sure many a POTUS would have preferred) then it would not be politicized as much as people would effectively have no say at all.

So while it may look politicized now, that's just because it's got some democracy in the mix.

I would have thought justices decide on purely legal questions: X is either legal or illegal. Y is either constitutional or unconstitutional. Those are different questions compared to "X should be legal or illegal", which necessarily involves personal opinion.

This is probably a question more suited to the Law SE site.

My very limited understanding is that SCOTUS does not have as well defined a role or powers as people may think it does. Much of what it does today seems to be defined and limited by it's own ruling - by precedent. States respect those decisions but it's not at all clear to me that SCOTUS can enforce arbitrary decisions.

Should X by legal or illegal, e.g. like the abortion cases, is a matter they seem to have had as a defined right as long as they are acting as a final arbitration of interpreting the application of existing laws and what priority those laws have over each other. They are ruling on whether laws are being applied in accordance with more important rights and laws as defined by existing laws and the constitution.

They do not, as such, make a new law. They have to be asked if they are willing to decide if laws made by the US, State or local government (or law of Tort) are being reasonably and fairly applied in the larger context of the full rights and laws applicable. That is not making new law, but if you are suddenly told by SCOTUS that you can no longer do X because e.g. lots of pages of detailed legal logic, it will seem like a new law. But it is just existing law being put in it's proper context.

However note that as the legal landscape they operate in (the big picture of all laws and amendments) changes over time, and as social norms change over time and finally that the individual members change over time, SCOTUS will inevitably seem to "change their minds" as time goes by. They may hear a case in one decade and decide that, hey, X seems right, and then a decade later, hear the same thing again but framed by new laws and social norms and decide Y is right and X isn't right now. What was perfectly reasonable and fair as a method of execution one decade may be considered unfair and downright cruel by the court in another as law, social norms and maybe even scientific understanding (e.g. new evidence) develop. So it's not as black and white as may seem.

the government doesn't have a choice, they have to make it legal for women to have abortions without excessive government restrictions

Governments do have a choice. They can try and pass new laws or amendments to the constitution, get them passed and wait for the inevitable appeal to SCOTUS to rule they got it wrong, hoping that this time SCOTUS feel they did it right and did not trample on more significant laws and rights.

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    Even today, the average person (and most above-average people) has "practically no knowledge of law or what defines an expert lawyer from a run-of-the-mill lawyer." That judges don't make law or shouldn't make law is widely misunderstood. Judges often have to make decisions that aren't guided by statute, and a fundamental basis of the US legal system, inherited from the English system, is that they do have that power. This constitutes "making law," though perhaps not "making a law." In fact, lawyers routinely evaluate old decisions as to whether or not they are still "good law." – phoog Sep 21 at 17:53

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