The Supreme Court adjourned for summer recess late last month after its historic Obamacare decision, and the attention of the political press corps has returned to the sparring match between President Obama and Mitt Romney over Romney’s tenure at Bain Capital.
However, one overlooked issue of Election 2012 has been how the election might change the makeup of the Supreme Court.
The specter of the next Supreme Court appointment was mentioned on the campaign trail last week, though. Speaking to the Democratic faithful in Las Vegas, Vice President Biden warned, “Close your eyes and imagine what the Supreme Court will look like after four years of Governor Romney. Imagine what it will act like. Imagine what it will mean for civil rights, voting rights, and for so much we have fought so hard for.”
Romney has previously stated he would nominate a judge like Chief Justice John Roberts to the Court, although he promptly changed his mind after Roberts voted to uphold Obama’s healthcare law, calling it inappropriate and “a departure” from sound reasoning. Romney now claims he would seek a justice who “believe[s] in following the Constitution.”
(Roberts is not the first justice to disappoint conservatives. His approval rating among Republicans has tanked, the same way Justices Sandra Day O’Connor and Anthony Kennedy saw their GOP support slip after revealing
swing justice tendencies.)
If Romney’s selection of former Judge Robert Bork (whose nomination to the Court by President Reagan was rejected in 1987) to head his judicial advisory team is any indication, he intends to move the conservative Supreme Court even further to the right. Reuters has flagged former Solicitor Paul Clement, who argued against Obamacare before the Supreme Court, as a possible Romney pick.
If Obama is reelected, he is likely to nominate another justice in the mold of Elena Kagan and Sonia Sotomayor, his two most recent appointees. Judge Diane Pamela Wood of the Court of Appeals for the 7th Circuit and Judge Merrick Garland of the Court of Appeals for the D.C. Circuit were mentioned as possible Obama nominees the last time there was a Supreme Court vacancy.
Which raises the most important question: who will be the next Supreme Court justice to retire? The most likely possibility is Justice Ruth Bader Ginsburg, who at 79 recently lost her husband and has battled pancreatic cancer. However, Ginsburg recently hinted that she’d like to serve well into her mid-80s.
Aside from Ginsburg, the two oldest justices are Antonin Scalia (76) and Anthony Kennedy (75).
The biggest shift on the Court would result if Romney were able to replace Ginsburg — which could result in a 6-3 conservative majority that might change rulings on abortion rights and affirmative action — or if Obama were able to replace a conservative justice, which could see the Court flip to a 5-4 liberal majority.
Less dramatic changes might occur if Obama were to replace Ginsburg, or if Romney were to replace Scalia.
Kennedy’s retirement, on the other hand, would be a boon to either party — both Republicans and Democrats would like to see him replaced with a more solid conservative (or liberal).
There’s also a good chance that the justices might decide to sit tight over the next four years. After all, they do have lifetime tenure. If this is the case, Court watchers will have to wait until 2017, and whoever the next Oval Office occupant is will have their chance to leave a mark on the highest court in the land.