There’s no shortage of issues for this year’s congressional midterm elections and the presidential showdown in 2016—the state of the economy, health care and foreign policy all figure into the mix.
But how about another factor few people are talking about at the moment: the future of the Supreme Court.
President Barack Obama has made two appointees to the high court—Sonia Sotomayor in 2009 and Elena Kagan in 2010. Both women replaced liberal justices, so the political split on the court remained the same: five conservatives and four liberals if you put Justice Anthony Kennedy in the conservative column—even though he often represents the swing vote in five-to-four court decisions.
Supreme Court appointments are for life, leaving individual justices to decide how long to stay on the job, and since 1980 the average age of a retiring justice has been 79.
The question is whether President Obama will have an opportunity to name a third justice to the high court some time before he leaves office in early 2017.
Who might go?
Court observers have long thought that the most likely justice to retire next would be Justice Ruth Bader Ginsburg, who was appointed to the high court by President Bill Clinton in 1993.
Now 81 and two-time cancer survivor, Ginsburg has given every indication she would like to stay on the court for a while yet, even if some liberal activists hope she would retire before the end of Obama's term to make way for another liberal appointment — thereby keeping the court's ideological makeup intact.
In fact, some liberal activists have suggested both Ginsburg and Breyer should time their retirements to give Obama the chance to appoint younger liberals who would remain on the court for years to come.
While Supreme Court justices tend to say little about their retirement plans, and completely sidestep the issue of possible successors, retired Justice John Paul Stevens had a different view.
Appointed by President Gerald Ford in 1975, Stevens was replaced by Justice Elena Kagan after stepping down for health reasons in 2010, telling ABC’s “This Week” that it was “natural and appropriate” for a retiring justice to think about a successor.
“If you’re interested in the job and in the kind of work that’s done, you have an interest in who’s going to fill your shoes," he said.
Three of the other justices are now in their 70s. Justice Antonin Scalia, appointed by President Ronald Reagan in 1986, is the longest-serving member of the current court at 78, while Justice Kennedy, a fellow Reagan appointee, is 77, and Justice Stephen Breyer, appointed by President Clinton, is 75.
None has given any indication of impending retirement.
A retirement by any one of the conservative justices would likely set off an intense confirmation battle in the Senate. Republicans would probably try to block any attempt by Obama to appoint a proven liberal, which would alter the current five-to-four advantage of court conservatives.
The high court could figure as an issue in this year’s midterm election campaign as well, though most analysts consider it well down the list of priorities for voters more worried about the economy, health care and the budget.
However, if Republicans can gain the six seats they need to retake control of the Senate, it might make it harder for Obama to nominate a true liberal justice to the court should a vacancy emerge.
Court decisions often have huge political impact. The court upheld the constitutionality of Obama’s signature health care law in 2012, for example, thanks to unexpected support from Chief Justice John Roberts, an appointee of President George W. Bush. Rulings on gun rights, abortion, affirmative action and same-sex marriage spark intense political debate and sometimes congressional action.
It’s more likely that Supreme Court nominations and the political balance on the court will become an issue in the 2016 presidential election. Given the advanced ages of Ginsburg and Justice Stephen Breyer, a Republican president might have the opportunity to replace both of them with more conservative justices, ensuring the high court has a conservative tilt for years to come.
However, if a Democratic candidate such as Hillary Clinton takes the White House in 2016, she would have the chance to possibly replace some retiring conservative justices with more liberal appointees, shifting the ideological balance on the court from center-right to center-left.
It should be pointed out that Supreme Court justices don’t always conform to the expectations of the presidents who appointed them. Even though he was appointed by Republican Gerald Ford, Stevens turned out to be one of the court’s most reliable liberal votes, whereas, Justice David Souter, appointed by President George H.W. Bush, often annoyed conservatives by siding with liberal justices.
The Supreme Court is rarely a major issue in our election campaigns. But given the sharp ideological divide on the high court at the moment and likelihood for several retirements over the next several years, the election outcome in 2016 could have a huge impact on the court makeup and decisions for years to come.