How the Supreme Court Operates


Professor of law at the University of Texas School of Law and executive director of just security and senior editor of the Law. Fair Blonde. He's here to talk about the U. S. Supreme Court from how the nation's high court operates to the confirmation process for Supreme Court. Justice is a process that will be front and center. Throughout the month of October. Steve thanks so much for the time and let's start At the very beginning, The founders set up this novel system of government involving three different branches, one being the judicial branch. What was the vision that they articulated an article three of the Constitution really, the core purpose of the judiciary. Yeah, I mean, the very fact that it's a separate article actually is the beginning of the story because in England, you know from which we were breakin the judiciary was not independent. The court was called the Katie's sketch on Go. The founder's put the courts in their own article entirely because the founders thought that a critical part of preserving our rights was to have an independent judiciary that could in appropriate circumstances after the checkup on potential charity of the majority, So from the start, the idea was that we would have Independent judges who were not politically accountable, who, in appropriate cases could have the power to do the obligation to strike down democratic laws. But democratic laws that were nevertheless in violation of the Constitution. Supreme Court always seems to be a hot button issue. These days, Some people cast their ballots in presidential races specifically because of the possibility a seat on the bench could open up. Has it always been that way? It really has been followed. I mean, I think you know there are periods in American history, where the court with a huge issue, I mean the dread Scott decision for the Supreme Court really goes out of its way to put its stamp on the institution of slavery in 18 57 became a galvanizing part of 1st 18 58 Senate race in the Lincoln Douglas debates and then the 18 50 presidential election. But I think what's different about today is that The court look so much like the rest of the country that you know the court really is divided and polarized into much of the same two camps as so many of us and that's why I think folks tend to see high profile cases before the court in such partisan terms and, you know debates over confirmation. Such partisan turns because increasingly looks like the court is just another institution divided into two parties based on who's in charge of the time. There've been some discussions. As of late over the amount of justice is that should be on the court or whether or not justice is should serve for life may be implementing term limits. How are those decisions made in the past and what flexibility does Congress have to potentially make changes to the court? Yeah, In the side of the court is perhaps the easier one Because there's just no question that the court is to some degree. It lied to Congress is controlling that that you know, Congress has overtime. Barry the size of the court at the Fountain, There are actually six justices. We had many of 10 for a short period of time in the sixties before settling in the current number of 1918 59. So you know there's nothing unconstitutional. I've got a statute that would say, added 234. C To the court. I think the tricky part is, you know, if you start down that road, then you Republicans the next time they're in charge at their own speed to the court, and what does that do for the court legitimacy in the long term, But at least it's a matter of pure constitutional law is up to Congress. As on there's at least one justice. How many more than one of the question of legislative grace On term limits that met here because we've actually never seen Congress, you know, try to do anything other than allow life tenure for justice is the Constitution doesn't say like tenure, it says, you know, the justices are allowed to hold their offices during quote, good behavior, unquote. But of course, you know that doesn't answer the question of what it means to hold their office. Could Congress give them different responsibilities? Good Congress keep paying them, but tell them to do nothing. These are questions that Supreme Court's never really had to answer because A question Congress hadn't really ever provoked. So you know, at least on that one. I think we're in a bit more of uncharted territory. The purpose behind the lifetime appointment to the Supreme Court. Why did the founders believe that was necessary? Yes, it was a big part of independence that you know when you have a judge, say who don't serve in the five or 10 year term, You know, here. She might be making decisions for reasons other than because they think they're the right decisions They might be, you know, looking over their shoulder at what their next job is gonna be there. They might be trying to sort of curry favour with whoever's in power tow. You perhaps be reappointed reporting to different position. So the founders thought that one of the ways of ensuring independence was job protection was making clear that You know, you don't have to worry about finding other jobs. You don't have to worry about having your paid diminished if you hand down unpopular decision as a way of just saying it, like the judges and justices would not be beholden to political pressures. Especially when Nick an unpopular decision, and one other area where Congress has control over the judiciary, including the Supreme Court is impeachment power. Certainly not something you see exercised very often, but the power's there, right Yeah, I mean, like any other federal officers, judges and justices there. Seven to impeachment. There's only been one impeachment of justice on the Supreme Court in all American history that you know five when the Jeffersonians tried to impeach arch Federalist Samuel Chase of and it failed, mostly because it was preceded. A political future is not a good one. But there are lower court judges who have been impeached fairly often for I think what we would all agree to it is clear misconduct. So you know there are checks on the court. And Peter did one of them. You know, Congress has at least some power over the jurisdiction of the federal courts decide which cases they got to hear. Congress control most of the budget of the federal court, So it's not that the court unaccountable that the accountability comes in different ways and not necessarily the ballot box. And that's part of how we ensure that courts are able to protect the rights of minorities, which is perhaps the most important function. I'm joined by Steve

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