How Can The Presidential Election Affect The Supreme Court?

A critical aspect of who we elect as president is how that decision will affect the composition of the U. S.  Supreme Court.  Four members of the nine-member Court are in their mid-to-late 70s. All of these approach or pass average life expectancy during the term (2012-2016). All members of the U.S. Supreme Court may serve either until the choose to retire or until they die. Given the ages of these four members one would expect that one or two or several of them might choose to retire from the court over the next several years. If they stay, they will be 78, 80, 80 and 83 in 2016. These are justices Stephen Breyer, Antonin Scalia, Anthony Kennedy and Ruth Bader-Ginsburg, respectively.

Indeed, this group of older justices may well stay on the Court through the end of the next presidential term. The remaining justices range in age from 52 through 64 and would not be expected to retire. Nevertheless, it remains possible that one or more justices would need to be replaced during 2013-2016 due to circumstances that are not foreseen at this time.

Presently, the Court is technically divided along ideological lines (4-4-1) on a small number of important cases it may agree to take each term. There are four justices that tend to vote conservatively, four liberal and one so-called swing voting justice (Justice Kennedy) who sometimes votes with one or the other of these groups. These are cases that are often hard to judge as championing liberal or conservative causes specifically, but they are almost always regarded as having a substantial impact on the nation. Further, we often see such cases as favored to go in one direction by Democrats and in another by Republicans. Obviously, when feelings are strong, the decisions taken one way or the other can be polarizing. Minimally many such cases have been key to the development of the nation over the last two and a quarter centuries.

President Obama has already appointed two judges and if re-elected could recommend appointment of several more before 2016. Should Governor Romney be elected, he could likely make one or two appointments to the court in his first term, and another one or two in a second term if re-elected in 2016. If justices Breyer, Scalia, Kennedy and Bader-Ginsberg were to all leave the Supreme Court before 2020, a two-term Romney presidency could have a long term, almost unprecedented effect on the philosophical orientation of the U.S. Supreme Courts majority, making it potentially into a 7-2 conservative majority. In that case, the conservative majority would likely last at least into the early 2030s. It is both likely and possible that such a philosophical shift in the U. S. Supreme Court would alter rulings made on seminal court cases decades ago in addition to changing the course of the nation on case rulings yet to come.

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4 responses to “How Can The Presidential Election Affect The Supreme Court?

  1. Sir,
    This is reason enough to abolish the lifetime appointments. The Supreme Court is shockingly monarchistic for a Democratic society. As a voter I feel resentful that I have to base my decision regarding a president over an appointment for a position over which I have no direct influence.

    My guess, though, is that a president Romney would appoint a moderate conservative to the Supreme Court… A friend of mine made a good point that if a Republican appointed a conservative to office and that appointee then partook in an overturning of Roe v Wade, that decision would effectively spell the end of the Republican Party as we know it, as they would permanently lose the female vote.

    • Don’t think you need to base your vote on what happens with the Supreme Court. You probably do want to take that into consideration. Also, if Romney goes that way it is true that it will have a pretty negative effect. I agree with you.

  2. Personally I am not completely happy with Obama, even though I voted for him last time and this time due to the alternative we have to chose from. I no longer expect miracles but do know that we will at least have two more liberal judges in the supreme court at least by way of the Obama presidency if not more, In 2016 election I am hoping that Hillary will become the first white women president and there we will have another two or three liberals in the supreme court making the count 7-2 and that will stand for the next 35 – 40 years, Enough to change the country to the left ones and for all, unless we get into a civil war.

    • Agree that if Obama is reelected the outcome in the Court will probably be as you suggest. Also, if she is willing to run in 2016 Hillary Clinton would very likely be elected.

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