Should the Supreme Courts justices be elected or appointed?

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Should the Supreme Court justices be elected

Source: Composite by G_marius based on Biblioteca de la Facultad de Derecho y Ciencias del Trabajo’s  and Gabriel Sanz’s images

The Supreme Court is usually the highest court in a legal system. In order to ensure independence of the judiciary, should justices be elected or appointed?

Role of The Supreme Court

Separation of powers is one of the most important requisites in democracy. Critiques to the Supreme Court Judges emerge periodically. Chief Justice John G. Roberts Jr. has recently tried to defend the role of the Supreme Court and shield it from the criticisms about the lack of neutrality suffered by other Washington institutions.

A supreme court is typically the highest court within the legal hierarchy  and is a central element in safeguarding democracy. In most countries, the Supreme Court or Constitutional Courts are the courts of last resort. They are also known as highest court of appeal, instance court, judgment court or apex court. Their decisions are not subject to further review by any other court. Therefore, a Supreme Court has a very important role in maintaining great principles such as justice and fairness, the independence of judiciary and the compliance of the Constitution, when the country has one.

Since the Supreme Court justices (also called judges or members) are individuals with their own personal beliefs and political preferences, the process of  how Supreme Court judges are appointed is very important. Justices are professional judges with long experience in the legal system, however the system in which they are elected or appointed may shape the way in which they act and their decisions. 

Who selects Supreme Court justices?

Every country has its own hierarchy of courts, and it would be impossible here to list all of them. We outline here the Supreme Court justices’ appointment or election in five countries: the United States of America, the United Kingdom, Canada, Australia and India.

  • US Supreme Court. In the USA, members of the SCOTUS (Supreme Court of the United States) are appointed by the President and confirmed by the Senate. Both President and the Senate members try to identify and propose candidates with an excellent professional record but who they think share their ideological view. Therefore the process often leads to criticisms and political conflicts between the two main parties. Justices serve for life, except if they are impeached and convicted by Congress (very rare), or if they voluntarily resign or retire.
  • UK Supreme Court. In the United Kingdom, a commission formed by the President and Deputy President of the Supreme Court and members of the Judicial Appointments Commissions (England and Wales, Scotland, Northern Ireland) is in charge of the appointment procedure. This commission selects one candidate for the vacancy, and notifies the Lord Chancellor, who then has the possibility of approving the nominnee or ask the commission to reconsider its selection. Judges appointed after 1995 have to retire at age 70 (75 before), and can also be removed from office by a decision of the Parliament.
  • High Court of Australia. In Australia, appointments are officially made by the Governor-General in Council, although in practice they are made by the Prime Minister, on advice from the Cabinet, particularly from the Attorney-General of Australia. Justices serve until the mandatory age of retirement (currently 70 years).
  • Supreme Court of Canada. In Canada, the process is very similar to Australia. Justices are appointed by the Governor General-in-Council, advised by the Cabinet, led by the Prime Minister. The mandatory age of retirement is 75.
  • Supreme Court of India. In India, new judges are appointed to the Supreme Court by the President of India following the recommendation of the collegium (a closed group including the Chief Justice of India and senior members of the Court). Supreme Court members have to retire at age 65.

Should Supreme Court justices be elected or appointed?

As seen in the previous examples, Supreme Court judges are usually appointed, normally by political figures, sometimes with the advice of judicial peers. Some people claim that Supreme Courts' members should be appointed by parliaments or ruling parties. Others argue that these judges should be appointed by peers. Finally some analysts suggest that they should be directly elected by the people.

Each of the three systems of Supreme Court justices' appointment has pros and cons. For instance a popular vote could make judges more independent from the politicians that otherwise would appoint them. This in theory could reinforce the democratic separation between the branches of government. However, popular elections have some clear disadvantages. Citizens may not have enough information about which judge has a better profile and those who spend more money in a campaign to gather support could be elected despite their individual qualifications and independence. Probably political parties and lobby groups would end up funding the campaign. That would bring to the fore again the issue of partiality. On the other hand, judges can be elected by their peers. The main risk of this process is that justices may end up electing new justices with similar ideology to those already in the Supreme Court. That could create path dependent dynamics and potentially a discrepancy between the ideas and beliefs of these judges and those of society at large. How do we control judges and ensure they reflect the views of a changing society if the people or the elected representative don't have a say in their election? But what can we expect from justices who have been appointed by politicians? Is the political appointment for long periods of time or life a better choice? The problem is that in times of polarization political parties may have the temptation to advance their agendas by using the Supreme Court as a tool.

What do you think is better to insure that the role of Supreme Court will be correctly enforced and guarantee justice and fairness or the independence of judiciary? Is Supreme Court justices’ appointment better than Supreme Court justices’ election? In a perfect system, who chooses Supreme Court justices? Should it be the people, the parliaments or professional peers? Share your views about the advantages and limitations of each of them.



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