President Barack Obama’s re-election probably won’t swing the liberal-conservative balance on the Supreme Court, though it’s likely to leave a lasting legacy in the justices who fill the court’s high-backed chairs, a Georgetown Law professor told TheBlaze.
With a relatively old bench — four of the justices are in their mid-to-late 70s — it seems probable Obama will get to make at least his third appointment during the next four years to a court that is comprised of four liberals, four conservatives and one swing justice in the middle.
Justice Ruth Bader Ginsburg, a liberal stalwart, seems most likely to vacate her seat next, now that it will again be a Democrat who would choose her successor. It’s precisely for that reason that anyone Obama lines up to replace her with will probably have a muted impact on the court’s ideological balance.
“I don’t see anyone wanting to get off and the reality is most justices don’t want to get off,” said Susan Bloch, a Georgetown professor and expert on the Supreme Court. “I think [with Obama's win] Ginsburg will probably retire before the end of his term.”
At age 79, Ginsburg is the oldest justice and has been treated for both colon cancer and pancreatic cancer. Nevertheless, she has been adamant about remaining on the bench and has given no public hints about stepping down anytime soon. She told an interviewer last year she intends to match the late Justice Louis Brandeis, who, like her, was appointed to the court at age 60 and remained until age 83.
But if Obama’s win could make Ginsburg more hospitable to the notion of retiring, it’s sure to have the opposite impact on Justices Antonin Scalia and Anthony Kennedy, both 76, Bloch said. The oldest of the staunch conservatives on the bench, Scalia has bordered on openly hostile toward Obama’s policies, particularly in his dissent over the court’s ruling on the health care law in June. Similarly, Kennedy enjoys the unique position as a key swing vote in many critical 5-4 cases and seems unlikely to give it up.
That means a continuation of sharply-divided decisions, including on cases involving gay rights, affirmative action and abortion — all issues Bloch expects to see the court wrestle with within the next few years.
“The big issues that are on the horizon are gay rights and perhaps abortion again and affirmative action,” Bloch said. “All of those are 5-4 kinds of decisions so…who resigns and who replaces them are really important decisions and they can turn, they can impact the direction we go.”
One of the biggest legacies a president leaves behind is who he appoints to the Supreme Court, where a justice’s lifetime tenure far outlasts a four- or eight-year stint in the White House. Presidents in the last 40 years have averaged about two appointments each: Obama has already had two, the same number as George W. Bush, Bill Clinton and George H.W. Bush. Ronald Reagan made three, Jimmy Carter got zero and Gerald Ford got one.
Obama’s re-election means he is likely to fare better than average — having already made two appointments during his first term — and can likely expect at least one more, meaning he’ll leave his stamp on a significant portion of the nine-member court.
“It’s one of the oddities of our system,” Bloch said. “The difference between a president getting zero and four is just totally happenstance.”
Yet for all the impact a president’s Supreme Court pick can have, and for all the cacophony on the campaign trail these last months, the Supreme Court was barely raised as an issue — not even garnering a single question during the presidential debates.
Kermit Roosevelt, an expert on constitutional law at the University of Pennsylvania Law School, theorizes that it could come from a kind of wariness on the part of the public.
“I think it’s possible that people have gotten a little bit wary about these alarmist calls about the Supreme Court,” he said. “For a long time, the left has been saying if the Republicans win, Roe v. Wade will be overturned. And we had a bunch of Republican presidents, it didn’t happen.”
Nevertheless, he found it surprising at how little the court came up during the campaign, save for the speculation earlier this year about the health care ruling.
“It’s surprising because given the balance that we have on the court now…if you can replace one of the liberals with a conservative or vice versa you would dramatically shift the balance,” Roosevelt said.
Still, Roosevelt said Obama so far has not seemed intent on radically changing the makeup of the judiciary, saying he has tended to appoint relative moderates to the bench — not just on the Supreme Court, but on the lower federal courts as well.
“We don’t actually know that much about his judicial philosophy, but it doesn’t seem to be a real priority for Obama actually,” Roosevelt said. “He hasn’t spent a lot of political capital on filling the vacancies in lower courts with a lot of vacancies and it didn’t really look like he was trying to appoint some sort of liberal intellectual leader to the court with the vacancies that he has had. I think he chose relatively safe picks.”
He added, “He could have chosen some exciting liberal law professor…[that] would have presented a real liberal constitutional vision but he hasn’t done so much. It doesn’t seem to me like he’s that eager to try to transform the Supreme Court.”