The impending retirement of Justice Anthony Kennedy from the US Supreme Court at the age of 81 provides an opportunity to examine the nature and function of this court.
Most democratic countries have similar “final” courts with a Supreme Court in Britain and a High Court in Australia.
The similarities are in their format, a small number of members, elected by the countries leader — the president in America; the prime minister in Australia after consulting his cabinet, and in Britain the queen following a nomination from the prime minister — and their handing of only a few cases normally involving national or constitutional laws.
A difference is in their duration with the US judges appointed for life, although they can retire, whereas the other two countries mentioned have minimum retirement ages in the early 70s and although they can be impeached this is a rare occurrence.
The retiring Justice Kennedy is seen as a conservative although some of his less conservative decisions have been important in a number of social issues such as abortion. Their voting choices can often be predicted although sometimes they go rogue and become a deciding vote and therein lies a concern.
It is not unreasonable to assume that they are selected based on their support of a similar viewpoint as the President of the time and the majority party — they probably need the support of both sections to get the nomination and the confirmation — although once they are in the job they are free to decide as they see best.
A photo of the existing group (of US Supreme Court judges) show they are not balanced in terms of gender or racial background which should be considered as most legal systems
involve juries of one’s peers. They are generally older, as the position would require experience and an established record.
The balance of viewpoint is generally known although as the average length of service is 26 years there is an opportunity to attempt to “stack it” leading to a group that would be judging in a certain way for a long time.
To say that the law should be unbiased and exact belies the difficulty of writing laws that cannot be interpreted differently. This may occur with the next appointment going from a conservative with some more liberal interpretations to a hard-line conservative thus moving the court to a more conservative standing. The appointment of a moderate or liberal judge is not likely to occur.
Should the selection process be broader, an elected position for 10 years or based on a clear support of both sides of the house with perhaps a minimum of 75% support? These are not easy questions to answer but consider how much society changes in the average 26 years with a number of equal rights issues being the only ambitions in the 1980s.
The candidate must obviously be of the highest standard possible, with a clear history of accurately interpreting the law and enacting it. There are some that worry this may not be the case this time.