US Supreme Court judge retirement an opportunity to examine court’s function

SIR,

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 with a small number of members elected by the country’s leader; the President in America, the Prime Minister in Australia after consulting cabinet and, in Britain, the Queen following a nomination from the Prime Minister. There are also similarities in their handling of only a few cases normally involving national or constitutional laws.

But there is a significant difference 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. 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, although once they are in the job they are free to decide as they see best.

A photo of the existing group shows they are not balanced in terms of gender or racial background. They are generally older as the position would require experience and an established record.

The balance of viewpoint is generally known, but as the average length of service is 26 years, there is an opportunity to attempt to ‘stack it’.

Should the selection process be broader, an elected position for 10 years or based on a clear support of both sides of the house? These are not easy questions to answer, but consider how much society changes in the average 26 years and the fact that a number of equal rights issues were simply 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. Dennis Fitzgerald Melbourne,

Australia