The next president may have the power to change the direction of the Supreme Court – and determine the future of abortion, gay rights, corporate influence in politics and much more.
The subject has hardly surfaced during the campaign, apart from Vice President Joe Biden’s brief reference at Thursday’s debate to the likelihood of antiabortion court nominees by Republican Mitt Romney. It could arise at Tuesday’s town-hall-style debate between Romney and President Obama.
Despite the lack of attention, the prospect of recasting the majority on a court that is closely divided on many critical issues is one of the most important consequences of the Nov. 6 election.
At least one of the court’s nine seats is likely to become vacant in the next four years. Liberal Justice Ruth Bader Ginsburg is 79 and has had cancer. Conservatives Antonin Scalia and Anthony Kennedy are both 76. Liberal Stephen Breyer is 74.
None has spoken publicly of retiring. Ginsburg has said she plans to stay until at least 2015. But longtime justices often time their departure so that a president with compatible views can choose their successor.
That suggests, at the least, that Obama or Romney will have the opportunity to pick one or more younger justices who would serve for decades after the winner of the November presidential election left office. The president in the next term could go significantly further, however, if a justice whose views differed from those of the president were to retire, either voluntarily or because of ill health, or die in office.
Romney’s role models
For Romney, those justices would include not only the four liberals – Ginsburg, Breyer, and Obama appointees Sonia Sotomayor and Elena Kagan – but also Kennedy, the most moderate of the five Republican appointees.
Romney has said he would model his nominees on Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts, pointedly omitting Kennedy. Romney’s chief judicial adviser is Robert Bork, the archconservative whose Supreme Court nomination by President Ronald Reagan was rejected by the Senate in 1987.
Obama’s prospects for remaking the court would depend not only on future vacancies, but also on the makeup of the Senate, which must confirm a president’s choice. Republicans have slowed his judicial appointments at all levels and blocked nominees they perceived as liberal – most prominently Goodwin Liu, the UC Berkeley law professor whose federal appeals court appointment was derailed by a Senate filibuster. Gov. Jerry Brown later appointed Liu to the California Supreme Court.
Sotomayor and Kagan, Obama’s two Supreme Court picks, have mostly voted on the liberal side in closely contested cases. But when the court upheld most of Obama’s health care law in June – a 5-4 decision written, unexpectedly, by Roberts – Kagan and Breyer sided with the conservatives in striking down a requirement that states accept federal funding to expand Medicaid coverage for the poor, elderly and disabled.
“Romney’s picks will be more conservative than Obama’s will be liberal,” predicted Erwin Chemerinsky, a liberal scholar and dean of the UC Irvine law school.
Anywhere from one to three departures are likely in the next four years, and “whoever appoints their replacement would alter the course (of the court) dramatically,” said conservative scholar John Eastman, a law professor at Chapman University in Orange County.
The potential issues cover the spectrum, from abortion and gay rights to corporate campaign contributions, class-action suits and renewed challenges to the national health care law.