The death of a member of the United States’ highest court has politicians arguing over who will take his place and when.
Supreme Court Justice Antonin Scalia died February 13 at age 79. He served on the court for nearly 30 years. He was one of its most conservative members.
Scalia was nominated in 1986 during the presidency of Ronald Reagan.
The Supreme Court is now split between four justices who often take liberal positions on legal issues, and four others who are said to be conservative.
Scalia’s replacement could shape the high court’s decisions for years to come.
Discussion about a new justice is heated with the court considering cases on issues such as immigration and affirmative action.
Liberals want President Barack Obama to name another justice before he leaves office. Conservatives do not. They hope a Republican is elected president in November. They believe that person would then appoint a conservative justice.
Experts say Obama is considering at least five scholars from diverse backgrounds as a possible replacement for Scalia.
Choosing a New Supreme Court Justice
So, who has the power to name the next Supreme Court Justice: The president or the people?
“Power to nominate the Justices is vested in the President of the United States, and appointments are made with the advice and consent” -- or approval -- of the Senate, according to supremecourt.gov. Those powers are guaranteed under the U.S. Constitution.
Once confirmed, a justice can serve on the Supreme Court for the rest of his or her life.
David Savage has reported on the court for 30 years for the Los Angeles Times, and written a book about it.
He says it is “possible, but unlikely” that a new justice will be seated on the court before the next president takes office.
The U.S. Supreme Court was created in 1789. Since then, 40 presidents have made 160 nominations to the court. The Senate confirmed 124 of those nominees. Seven others refused to serve.
Worldwide, the Supreme Court serves as a model for the fair and democratic treatment of legal disputes.
It is one of the three parts of the U.S. government: Congress, the Judiciary, and the President.
The Power of the Court
Savage explains why some Americans think the Supreme Court has more power than the president.
“Because it decides major Constitutional issues that, once decided, have a huge impact across the country, and basically can’t be changed by the president.”
The court, he says, decides big issues that affect many people in important ways.
“You know, matters like abortion, the death penalty, affirmative action, gay rights, gun rights. When the court decides a Constitutional issue and says there is a right to have a gun, and there is a right to equal rights for same sex marriages, that’s a big change in the law, affects a lot of people and it goes well beyond, you know, one president’s term.”
Overturning the Court's Rulings
If the president or American citizens do not like a Supreme Court ruling, it is very hard to change. There are several ways to do it, but they are difficult and require time.
One way, says Savage, would be to pass a constitutional amendment. But that would need two-thirds of Congress and three-fourths of the states’ approval. This is “pretty unlikely to happen,” he says. And it is “almost impossible” in today’s politically divided country.
Another way to overturn a ruling would be if new justices were appointed to the Supreme Court. Then a similar case could move through lower courts and be heard by the Supreme Court, where the new justices could overturn the earlier ruling.
From time to time, the Supreme Court does overturn some of its earlier rulings. One such example came in 1954 in a case called Brown v. Board of Education of Topeka, Kansas. This ruling declared racial segregation unconstitutional.
Brown overturned Plessy v. Ferguson, which in 1896 supported segregation or inequality among races.
Supreme Court History
Over time, the court has ruled on equality for blacks, women and gays; legalized operations for ending pregnancies; and approved use of the death sentence as a form of criminal punishment. It has supported the right to carry a gun, and the right for people of the same sex to marry.
Savage explains the court’s decisions follow changes in American thinking and beliefs over time.
"Well, I think it reflects American society in the sense that the big changes on the court really tend to flow out of big changes around the country, and in thinking.”
Major Supreme Court Rulings
Here are some other important cases the court has decided:
Gideon v. Wainwright (1963)
States must provide defense lawyers to criminal defendants charged with serious crimes when the defendant does not have enough money for a lawyer. The Supreme Court ruled that the defense attorney must be paid for by the public.
Miranda v. Arizona (1966)
The court ruled that police must inform a suspect that they have the right to remain silent during questioning. Suspects must voluntarily give up those rights before police can use their statements in court against them.
Roe v. Wade (1973)
The court recognized that a woman’s choice to end her pregnancy is protected by her right to privacy. The legalization of abortion continues to be debated in the U.S. today.
United States v. Nixon (1974)
This case showed that “the president is not above the law,” says Savage. President Richard Nixon had refused to give investigators tape recordings of him discussing the Watergate scandal with his aides. The Supreme Court ruled he must surrender those tapes. He did so, and resigned as president 16 days later.
Citizens United v. FEC (2010)
The court ruled that the First Amendment allows individuals, corporations and organizations unlimited spending on political elections. Since then, individuals or organizations have spent large amounts of money on candidates and causes of their choice.
I’m Anne Ball.
And I’m Mario Ritter.
What is the high court in your country? Write to us in the Comments section or on our Facebook page.
Anne Ball and Christopher Jones-Cruise wrote this story. Kathleen Struck and George Grow were the editors.
Words in This Story
affirmative action – n. an policy designed to help those who suffer from discrimination, especially in relation to employment or education
vested – adj. fully guaranteed as a legal right
abortion – n. the medical operation for ending a pregnancy
gays – n. homosexuals