Comparative Judiciaries

The current discussion about SCOTUS is a good excuse to look at how other countries handle these things.

The current discussion of SCOTUS vacancies made me starting thinking, once again, about the process we use to fill our highest court.  Specifically, the lifetime appointments.  For some time, entirely independent of the current moment, I have favored fixed, staggered terms, as is done with the Federal Reserve.  There should be a regularity to the terms, and a fixed term with no reappointments would lower the crazy high stakes and seeming randomness of this process.  Over time such a system would create a situation in which various presidents would affect the Court, and no one president would be either left out nor have an oversized amount of influence.

If, for example, we had 18-year terms there would two appointments per four year presidential term.  So the current court would have four Bush appointees, four Obama appointees, and one Trump appointee at this point in time.  This would be a reasonable representation of the political trends of the country over the past 18 years.  If it was known that each president would get two appointees and that those appointees would serve only one term, it would significantly ramp down the intensity over these nominations.  At the moment, the stakes are crazy high:  a current appointee could serve three or more decades.

Consider, when Anthony Kennedy was appointed to the Supreme Court, I was nineteen years old and a sophomore in college.  I turn fifty later this year.  Kennedy has been on the bench long enough for me to:  complete my BA, earn a Ph.D., become a tenured full professor and then a college Dean.  I have one child older than I was when he started, and a second about to start college–that’s a long, long time for one person to be in power and of consequence to US governance. And while I do not think it a major point in this discussion, this not what the Framers were after. They wanted lifetime appointment to insulate the SC from everyday politics, not to create multi-decade entrenched power.  Likewise, consider how absurd it is that the multi-decade future of the court hangs on whether 85 year-old Ruth Bader Ginsburg can outlast Donald Trump’s time in office.  Really, regardless of one’s preferences, that it just nuts.

Just as a point of information, the following is Table 9.4 from A Different Democracy: American Government in a Thirty-One -Country Perspective.  There is a lot here, and I am not going to try and deal with all of it, but I always think it is worthwhile to see how the rest of the world does these things.  I will note that the reason there is a “Supreme Court” and a “Constitutional Tribunal” column is largely the common law/civil law legal systems that exist:

In those democracies that have established judicial review, there is a divergence between those that combine the role of constitutional tribunal and of the highest appellate court into one body, usually called the Supreme Court, and those that divide these roles into separate institutions. A constitutional tribunal is an institution charged with enforcing the higher status of the constitution, relative to laws and other government acts. The appellate process is the ultimate resolution of all ordinary legal disputes, whether they involve the government or not and regardless of whether they raise constitutional controversies.

The concept of a separate constitutional tribunal arose first in civil law countries, for the obvious reason that civil law does not traditionally see a role for judges to be charged with invalidating legislation. Indeed, the regular courts in civil law systems are expressly not oriented towards interpretation, up to the highest levels of the court system. High (or supreme) courts in civil law systems are often called, after the French model, courts of cassation. These courts exist to ensure that the laws are uniformly applied through the court system in conformity with the law as codified. Such a role does not allow for the ability to deal with constitutional issues and their interpretation, hence the need to create a special, and separate, high court to address those types of questions (ADD, 253-254).

As such, when a country has two, the relevant one for understanding issues of constitutional interpretation is the right one.

Five of these countries(Finland, the Netherlands, New Zealand, Switzerland, and the UK) have no judicial review of legislation and therefore aren’t comparative to the US for this discussion. Without getting into any other details, note that only three (Argentina, Sweden, and the US) have life appointments. Most constitutional courts are also larger than ours.  There are also some interesting variations in terms of how the courts are selected.  Most have mandatory retirement ages.

FILED UNDER: Law and the Courts, Supreme Court, U.S. Constitution, US Politics, World Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. In Portugal, the exact method is “10 by legislature (by a qualified 2/3 majority) and 3 by the other 10”

  2. Franklin says:

    Interesting comparison. But right now I don’t think there’s any conservative enthusiasm for changing the Constitution in this regard.

  3. OzarkHillbilly says:

    @Franklin: Just wait for a DEM to be president, they’ll come around.

    @Steven L. Taylor: What about when a justice dies/resigns before serving their full term? Would the replacement only finish the term? And would the process for nomination and confirmation be the same?

  4. george says:

    One of the real differences in America is just how political the supreme court is.

    In Canada, which also has fairly divisive politics (though all of it shifted to the left – the Canadian Conservative Party is left of America’s Democratic Party on many issues, including death penalty, abortion rights, and public health care), there’s never been any politics around who’s on the supreme court. And in fact, probably less than 1% of Canadians can name a single Canadian supreme court judge, including people who follow politics closely. I couldn’t without looking it up, though I think I’d recognize one or two names if I heard them.

    I suspect the same is true for just about every other developed nation – despite partisan politics, their equivalent to the supreme court will probably be decidedly non-political. Which raises the question, why is the American supreme court so political?

  5. @Franklin: No one is interesting, in any serious sense, in reforms of these kinds.

    @OzarkHillbilly: Yes, a vacancy would be replaced until the end of the term. That could create some imbalance, but one would think it would be relatively rare.

    @george:

    One of the real differences in America is just how political the supreme court is.

    But part of the reason that the Court is so political is because of the way it is constructed. Note that the Canadian SC is appointed by the Governor-General, not the PM. Also, because Canada has a parliamentary system, it is easier to get matters handled by regular political means. (And there are, not doubt, other nuances of Canada I am not hitting here).

    Of course, in general, the US has very strong judicial review, which also ramps up the stakes.

  6. @george:

    Which raises the question, why is the American supreme court so political?

    Again: when each seat can be occupied for 25, 30, or 40 years, the stakes for each nomination are huge. Couple that with strong judicial review and controversial issues (from desegregation to abortion to gay rights) and this becomes pretty volatile.

  7. teve tory says:

    @Steven L. Taylor: I suspect if Trump nominated a 27-year-old Bob Jones University graduate he’d get confirmed.

  8. Dave Schuler says:

    Note that all of the countries that have common law systems have rules very much like ours. The balance of the countries have civil code systems.

  9. teve tory says:

    @george:

    Which raises the question, why is the American supreme court so political?

    Aside from structural reasons, America has an unusual number of Fundy numbnuts.

  10. Gustopher says:

    There’s another solution to the problem of lifetime appointments that everyone seems to be ignoring…

    I’m not talking about second amendment remedies, I’m talking about a dystopian future where we are implementing Logan’s Run, except with judges rather than the entire populace.

    It’s high time that we stop thinking of dystopian movies as warnings, and start thinking of them as thought experiments to explore ideas that we haven’t fully embraced yet.

  11. george says:

    @Steven L. Taylor:

    Well, the governor general appoints the supreme court on the advice of the prime minister – and in fact any GG who didn’t follow that advice would be immediately canned. But I think you’re right that the parliamentary system helps – as you say, easier to pass laws, for good and for bad.

    But the laws passed seem less political – or maybe its Canadians willingness to accept laws once passed. For instance, even the conservative party here refuses to consider re-opening the abortion debate, or consider getting rid of the public health care (though they’d like to add a private option on top of the public care). They’re acting like conservatives in that regard (ie once something is established, you conserve it).

    Canada has ‘lifetime’ appointments, though life means ‘up to age 75’, but it hasn’t been a problem. Maybe the justices themselves work hard at coming to a consensus, you simply never hear about divisive splits in opinion (though there are split rulings) from them. Presumably they strongly disagree at times too, but if so it never comes out in public. What I’m told by lawyers is the rulings and disagreements are very dry, factual opinions.