This past year’s Presidential election may have hosted more apocalyptic rhetoric than any of those preceding it. Partisans from both camps leveled threats of impending American insolvency and promised immediate expatriation to foreign climes should the other guy be elected. In fact, should the wrong man be raised up, they warned, the very moral fabric of the United States would surely unravel.
Of course, most of this was undoubtedly hyperbole, as the odds of right-leaning Americans fleeing the President’s “Obamacare” policies to Canada and socialized medicine are probably comparable to the world’s richest and most powerful nation being brought to utter ruin by one man in four years. However, there is one score on which Obama’s detractors’ fears of fundamental changes resonating beyond the President’s tenure are arguably more justifiable- Supreme Court appointments.
Supreme Court assignments are consistently one of the most important and actually consequential decisions any American president makes for a number of reasons. Among the foremost of those reasons is the tenure of that President’s appointment or appointments. The average Justice serves 16 years, although Associate Justice William O. Douglas sat for nearly twice that- 36 years (1939-1975). So a Justice can generally be counted on to serve the nation’s highest court for four full presidential terms.
And perhaps unlike a single Senator or Congressman, a single Supreme Court Justice can have an exceptionally profound and lasting effect on America’s political and legal landscape. Apt examples are too numerous to list here, but they include: the vote that put George W. Bush in office for a second term in 2004, Roe vs. Wade- the national legalization of abortion decision, the recent ruling that upheld the Constitutionality of the aforementioned “Obamacare” legislation, etc. In fact, all of the cases mentioned were decided by a single vote. (Although, there were two Roe vs. Wade rulings: the first was 7-2, the second 5-4 to uphold the legality of abortion.)
A single appointment, therefore, can establish the political/cultural/social alignment of America’s highest legal authority for years. Right now, there are three Justices that are presumably approaching retirement age- Anthony Kennedy (76), Antonin Scalia (also 76), and Ruth Bader Ginsburg (79). (Stephen Breyer- a Clinton appointee- is 74 but is considered less likely to retire.) Kennedy and Scalia were both appointed by President Ronald Reagan. Scalia is one of the most consistently conservative sitting Justices. Kennedy, however, while generally right-leaning has disappointed his conservative base on a few occasions by siding with the opposition. Kennedy is widely considered a “swing vote”- not a presumable shoe-in for one political set or the other.
Obviously, if all three of the Justices over 75 were to retire, it would be quite a political/judicial coup for the Obama administration and left-leaning Americans in general. While John Roberts is Chief Justice, a conservative and President George W. Bush’s appointment, Antonin Scalia is generally regarded as the nerve center of the current Court’s Republican base. As such, if the Democratic/left wing constituency had their druthers and could wish just one retirement-age Justice out of office, they’d undoubtedly select Scalia for the honors. Kennedy would be the second choice, and Ginsburg the third.
As a member of the Democratic Party, a perpetually staunch supporter of women’s rights (particularly those of poorer women), on the American Civil Liberties Union’s board of directors (and volunteer advocate lawyer for them), and Clinton appointee, Ruth Bader Ginsburg is considered a firmly-liberal Associate Justice. She’s also considered the most likely to retire before President Obama’s second term ends. While replacing Ruth Bader Ginsburg with another presumably Democratic Party-friendly Justice may superficially seem like a lateral move, it’s still a win for the President.
Ginsburg’s replacement would be (almost certainly) a good deal younger than the sitting Associate Justice. The installation of a younger Justice would effectively seal the seat on America’s left (or at least the moderate left) side for, if the average holds, at least 16 years. Although in all likelihood a term will be longer than that because while the aggregate mean for all the Justices’ tenures is 16 years, the average term since has been 25.6 years.
However, making accurate predictions about the predilections and appointments of future Supreme Court Justices is often an exercise in futility. Oliver Wendell Holmes retired two months shy of his 91st birthday. With modern technological/medical advances, comparably advanced ages of Justices are far, far more common than they were in the past. If Holmes’s time on the court is a yardstick to measure against, Ruth Bader Ginsburg could serve another 11 years. Similarly, despite scientific advancement, life’s unpredictability is always a factor to consider. A younger Justice (or an older one) could be compelled to leave the court due to illness, accident, scandal, or any number of other intangibles. Basically, we’ll just have to wait and see.
Photo credit: terrellaftermath