I asked some classes to consider the impact this election is likely to have on the Supreme Court. Here's the same question addressed by a national reporter. He thinks its huge. The next president will shape the court for the next generation.
Somehow the campaigns have failed to remind us
that four justices are 74 or older, meaning they will be at
least 78 by the end of the term. Justice Ruth Bader Ginsburg is
already 79, with Justices Antonin Scalia and Anthony Kennedy not
far behind at 76 and Justice Stephen Breyer at 74. One hopes of
course they all live long lives, but the notion that all four
will still be willing and able to serve the next four years is
preposterous. Several will retire and be replaced -- and even
one replacement could fundamentally change the configuration of
the court.
If Romney becomes president, Ginsburg will certainly do all
she can to remain in the saddle. But if she were to have to
retire for health reasons (she has been treated for colon cancer
and pancreatic cancer), the court would become ineluctably
conservative. The present 4-to-4 split with Kennedy as the swing
vote would change into a stable 5-to-3 conservative majority,
with Kennedy no longer important.
Under Romney, Scalia might retire to give a Republican
president the chance to replace him with someone young and
comparably conservative. That would consolidate the conservative
majority of Chief Justice John Roberts, Justice Samuel Alito and
Justice Clarence Thomas (now 64) for as long as Thomas stayed
healthy.
Or consider the scenario where Obama is re-elected and
either Scalia or Kennedy is replaced by a relatively more
liberal justice. That would in turn create incentives for
Ginsburg and Breyer to retire, which would allow the possibility
of a five-justice liberal majority in which Justice Sonia Sotomayor, now 58, would be the eldest.
