Australia and the World Past and Present

The US Constitutions says that Supreme Court justices “shall hold their offices during good behavior”. Thus they can remain in the role until such time as they pass away or resign. This is meant to preserve the independence of justices. There is also the possibility that the Congress could remove a justice through an impeachment process if it believed such action was necessary. However this is extremely rare and has only occurred once. In this case the Senate issued an acquittal. If a justice’s service were compromised due to some health condition and was unwilling to resign, it would trigger a crisis as there is no constitutional process to deal with this situation.

As Supreme Court terms do not have time limits, vacancies are somewhat unpredictable.

It just so happened that Trump was in the driver’s seat when 3 vacancies came up. As there are 7 on the full panel, Trump had a very large impact on the composition of the Court.

Neil Gorsuch

Gorsuch received the stellar legal education that is typical of Supreme Court justices.

He studied at Colombia University, Harvard Law School and Oxford.

He was in private practice for a decade from 1995 to 2005 and worked a for a stint at the Department of Justice.

In terms of legal philosophy, he is known as a textualist – someone who looks to a literal reading of the law.

He is also said to be a proponent of originalism – interpreting the Constitution as it would have been understood at the time it was written.

These legal philosophies look backwards towards the past. They do not draw their inspiration from the future.

Brett Kavanaugh

From 2006 to 2018 he served on the US Court of Appeals.

He read history at Yale and then studied law at the same institution.

He clerked for Ken Starr who was a judge at the time. Starr would go on become the head of the Office of Independent Counsel. In that role, Starr recommended the impeachment for President Clinton.

Kavanaugh served in the Bush administration as the White House staff secretary.

His confirmation in the Senate was close – 50 to 48 – perhaps reflecting a concern over his somewhat political / politicised background.

He has taught law courses on the separation of powers, the Supreme Court and constitutional interpretation, which should him in good stead for making rulings during Trump’s second term.

In 2009 he wrote in an article that Congress should exempt US Presidents from civil lawsuits while they are in office as it is “time-consuming and distracting” but argued that they could still be impeached after their term has ended.

Amy Coney Barrett

Barrett is a former US Court of Appeals judge who served in that capacity from 2017 to 2020.

She attended Notre Dame Law School and clerked for former justice Antonin Scalia.

Her nomination under Trump was only a few weeks out form the 2020 presidential election.

She is sometimes also seen as a textualist and originalist.

It is widely believed that Trump’s nominations have moved the Court in a more conservative direction.

In 2022 the Court ruled that there was no constitutional right to abortion.

In 2023 it ruled that race could no longer be used when considering college applications and in 2024 it ruled that Presidents were immune from some criminal prosecution.

The current Court has made decisions that have overturned decades of precedent.

It does seem that the Court is now more conservative than it was before, but now that they have been appointed, justices are free to give the verdicts they believe are correct. And it is unlikely that these people, schooled in the legal traditions of their country, are will to go as far in their interpretations as Trump does.