Obama or McCain Will Impact Supreme Court
The Next President Will Have Enormous Effect on Direction of Court
Jul 13, 2008
Although the average age of the Court is younger now that John Roberts and Samuel Alito are on the bench, the average age of the justices is still almost 70. Four justices are over 70, and John Paul Stevens will be 88 when the next Supreme Court term begins.
What this means is that at least one justice, in all likelihood, will retire before the next presidential term is concluded. At least one other—Ruth Ginsburg, who is 75—will likely retire as well. Antonin Scalia and Anthony Kennedy are 72 and 71, respectively, although there are no signs that either is slowing down.
What this means in practical terms is that the Court is likely to head in a very different direction as long as the next president is in office.
In today’s world of give-no-ground politics, John McCain might find himself in a difficult position with a Democratically controlled Senate, which must confirm a president’s nomination. On the other hand, Barack Obama should find it easier to get his nominations affirmed. Depending on who wins, the end result will be that either the Court makes an even harder right turn to more conservative principles, or drifts slowly back to where it was just a decade ago.
Of course, no one knows what the future holds in terms of filling vacancies on the Court. Nominations have backfired in the face of the president before and they will backfire again. Former Chief Justice Earl Warren, who had been a Republican governor of California, was nominated by President Eisenhower. During his time on the bench, Warren oversaw monumental rulings affecting civil rights, privacy rights, segregation, and church-state relations. Eisenhower later said that nominating Warren was the biggest mistake of his life.
The examples do not end there. Justice Stevens, the most liberal member of the Court, was nominated by Gerald Ford, a republican president. Ronald Reagan nominated Anthony Kennedy, who traditionally has been a middle-of-the-road justice, and George H.W. Bush nominated David Souter, who usually sides with the liberal wing of the Court.
These three justices were all appointed by Republican presidents, yet they have become the disdain of ultra conservatives, whose ideal Court is comprised of justices in the mold of Alito, Scalia, and Clarence Thomas.
The point is that no one ever truly knows the transformation that will take place within a justice once he ascends to the bench. For all the politics that a nomination and confirmation process holds, justices tend to become apolitical once they reach the highest court in the land. They are given the extreme burden of handing down law that at some point will affect everyone. That is an immense responsibility to shoulder, and when faced with the facts of a case, the justices most often retreat to that they know best—the law, not politics.
The perfect example is Roe v. Wade. That case was decided by a Court that was mostly conservative, yet only two justices dissented from the majority opinion.
So, for all the worry, scorn, and endless array of questions that accompany a Supreme Court nomination and confirmation, the American public does not truly know how a nominee will vote until he becomes a justice.
Even so, the impact that the next president will have on the Court cannot be underestimated, for the new justices will have an immesruable influence on the nation's direction for years to come, regardless of how they vote.
