Giacomo Bertolissi
LL.M., Columbia Law School, 2016
Despite a general understanding that courts should respect the principle of separation of powers,[1] American justices have often been criticized for making policy judgments.[2] In the recent Obergefell case, Justice Scalia affirmed that “[t]oday’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” A similar criticism may be found in Italy. Even though Article 28 of the Legge 11 marzo 1953, n. 87 provides that the Italian Constitutional Court should refrain from interfering with the legislature’s discretion, the Italian Constitutional Court justices have been accused as having engaged in judicial legislation in a recent case relating to pensions.[3]
In this environment, the appointing system—which is often very politicized—plays a critical role. It is worth analyzing the following legal issues: are the current appointment systems effective methods for selecting Supreme Court justices both in Italy and the U.S.? What are their pros and cons? How does the nature of a lifetime appointment inform our understanding of a judicial appointment as opposed to appointment for a fixed term?
These queries have become all the more relevant given the debate surrounding a potential judicial successor brought about by Justice Scalia’s recent passing. Many Republicans have argued that the judicial appointment should only be made by the next president of the United States (once elected later in 2016), as President Obama is already in the last year of his term. Conversely, Democrats are of the opinion that such an appointment power is vested in the incumbent president anytime a justice resigns or dies, regardless of the amount of time the president has left in office.
Pursuant to Article II of the U.S. Constitution, the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” The president has the power to propose a name while the Senate has to approve his/her candidature. The president cannot compel the Senate to confirm his/her candidate, nor can the Senate force the president to propose its first choice.
Despite a system of checks and balances that involve both the head of the executive branch and a branch of the legislature, this procedure can lead to unwanted results. In theory, if a party controls both the Senate and the presidency, it could pack the Court with justices who support its views. This element, coupled with the nature of a lifetime appointment, potentially enables a party to retain control of the Supreme Court for extended periods of time. Justices could time their resignations to favor their own political party and, consequently, make sure that their successor will share similar ideas. Secondly, Article III does not set any retirement age. A justice can serve until death. This may be a problem anytime a justice is not physically and/or mentally able to fulfill his/her duties but he/she does not wish to resign.
Conversely, Italy adopts a fixed term system which, in my view, is more advantageous than the American lifetime appointment. In fact, a fixed term dramatically lowers the possibility for a party to control the Supreme Court as it does not allow justices to quit on their own terms.[4] Secondly, the Italian appointment procedure vests different bodies with the power to nominate Constitutional Court justices. Pursuant to article 135 of the Italian Constitution, the Constitutional Court is composed of fifteen judges: one-third chosen by the president of the Republic, one-third by Parliament, and one-third by the ordinary and administrative supreme Courts. By distributing the power of appointment, controlling the Supreme Court becomes quite hard to achieve.
Conclusion
Although it is generally hard to argue that one system is better than another since countries have different traditions which are not easily comparable,[5] I believe that the Italian judicial appointment is more effective than the American process. Every Supreme Court should aspire to be as un-politicized as possible and this would involve greater respect for the principle of separation of powers by diminishing the influence of the legislative and executive branches over the Supreme Court to the largest extent.
As explained above, politics in the U.S. play a key role in the justices’ appointments. Inevitably, this often puts the Supreme Court under the spotlight and the subject of blame by both Democrats and Republicans.[6] On the other hand, the Italian Constitutional Court does not face such criticism, and Italian Constitutional Court justices are able to work in a more serene environment. This result is due because of the different judicial appointments where politics tends to play a much bigger role in the U.S. compared to Italy.
In light of Scalia’s recent passing, the need for a change in the American setting became apparent. However, it will have to face one of the hardest constitutional amendment processes where wide agreement between Democrats and Republicans is vital. Given the current times, this is not likely to happen in the near future.
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[1] Chief Justice Roberts once affirmed that “[m]embers of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” National Federation of Independent. Business v. Sebelius.
[2] In Roe v. Wade, Justice Rehnquist stated that “[t]he decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.”
[3] The Italian Constitutional Court declared a law unconstitutional because it did not effectively balance the rights of pensioners against the Italian Government’s desire to cut pensions in order to reduce unsustainable public spending. This ruling negatively affected the Italian budget by at least 5 billion euros. In this case, the Italian Constitutional Court implicitly exercised a legislative function by way of choosing how to allocate an enormous amount of public resources.” Corte Cost., 30 aprile 2015, n. 70.
[4] Although it is true that a judge could technically resign before the end of his or her term, this has occurred only upon exceptional circumstances.
[5] Two different systems can both work very well as they fit distinct situations. On the other hand, the same system applied in two different countries may lead to diametrically opposed results. Take the presidential system of government adopted both in Venezuela and in the U.S. While the U.S. represents a consolidated democracy, in Venezuela the same system does not entail the same degree of protections to its citizens.
[6] Professor Amar shared this idea during a class of Advanced Constitutional Law: Reading the Constitution, a seminar held at Columbia Law School. Lecture held by Akhil Reed Amar, Professor of Constitutional Law, Yale Law School, in New York (NY), United States (Feb. 26, 2016).
