Obama’s judgement call

The choice of US Supreme Court justices can reshape America's legal debates

The Supreme Court of the United States consists of nine justices who are appointed with life tenure. The court has the responsibility and the authority to decide whether laws enacted in the US by cities, states and the national government are consistent with the constitution.

The guarantees of the US constitution are often stated in general and rather vague terms. For example, the constitution provides that the government may not "deny to any person the equal protection of the laws", may not make any law "abridging the freedom of speech," and may not inflict "cruel and unusual punishment". Because these guarantees are not self-defining, the justices often disagree about the most important questions of constitutional law. It therefore matters a great deal who gets to appoint them. In the American system, when a vacancy occurs because of retirement or death, the president nominates a prospective justice and the US senate has to then decide whether to confirm that nomination.

At the moment, the justices of the Supreme Court are sharply divided in their approaches to constitutional law. This division often plays itself out in ways that seem both ideological and predictable. This is so because presidents tend to nominate justices who share their perspective on the law, and although the senate sometimes withholds confirmation, it usually gives the president the benefit of doubt.

At present, five of the nine justices were appointed by Republican presidents and four were appointed by Democratic presidents. By American standards, all five of the justices appointed by Republican presidents are conservative in their approach to constitutional law, and all four of the justices appointed by Democratic presidents are liberal in their approach. Such a strong correlation is somewhat unusual, because historically, some justices appointed by Republican presidents have turned out to be liberal and some appointed by Democratic presidents have turned out to be conservative, but at the moment that is not the case.

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