When President Barack Obama told donors on Monday night to help Democrats because “we’re going to have Supreme Court appointments” he may or may not have been talking about his own final years in office.
But he was right that several justices are statistically likely to retire in the coming years. None of them have revealed plans to step down, and if all of them stick around through the end of Obama’s term, the 2016 presidential election could lead to a cataclysmic reshaping of the Supreme Court, and with it the country.
As of Election Day in 2016, three of the nine justices will be more than 80 years old. A fourth will be 78.
The average retirement age for a Supreme Court justice is 78.7, according to a 2006 study by the Harvard Journal of Law and Public Policy.
“Appointments to the Supreme Court are always extraordinary consequential. But certainly under the circumstances, considering the age of a number of justices and the 5-4 splits in so many cases, it’s now more important than ever,” said Caroline Fredrickson, president of the American Constitution Society, a progressive legal advocacy group.
The modern Supreme Court is the most polarized along party lines in generations, having decided a host of deeply consequential issues by fragile 5 to 4 margins. That mirrors the increasingly political confirmation process and tendency of Democrats and Republicans to nominate judges that reflect their movement’s world view. The replacement of even one justice, let alone several, could affect laws which have a profound impact on millions of Americans.
The Court’s conservative decisions on issues like campaign finance limits, voting rights and religious freedom would be prime candidates for revisiting if one conservative justice is replaced under a Democratic president.
“The fact that Citizens United and Shelby County were extraordinary reversals of existing law, I think there would certainly be some interest among the more progressive justices in revisiting those decisions,” Fredrickson said. “Religious liberty questions would be another area — some of the justices might want to consider where the Court was going in the Hobby Lobby case.”
Conversely, the future of abortion rights and the legal trend toward gay rights may be imperiled if a liberal justice is replaced under a Republican president. The current Court has begun to roll back abortion rights, and Justice Antonin Scalia has repeatedly called for overturning Roe v. Wade; the addition of a conservative justice could complete the task. The landmark ruling last year for federal recognition of gay marriage rested on a 5-4 margin.
If a solid conservative bloc endures on the Court for years, conservatives may get a stab at achieving their overarching goals, which the movement’s legal scholars say include limiting the federal government’s power to regulate interstate commerce and targeting the legal foundation for safety-net programs like Social Security and Medicare.
Change could come quickly, as evidenced in Justice Samuel Alito’s first full term ending in 2007 after he replaced Justice Sandra Day O’Connor. The new muscular conservative bloc issued a series of rulings that moved American law to the right on matters like abortion and race, unwinding some precedent. At the time Justice Stephen Breyer lamented from the bench, “It is not often in the law that so few have so quickly changed so much.”
In today’s Supreme Court the next likely candidates for retirement include Clinton-appointed Justice Ruth Bader Ginsburg, 81; Reagan-appointed Justice Antonin Scalia, 78; Reagan-appointed Justice Anthony Kennedy, 78; and Clinton-appointed Breyer, who turns 76 this week.
The most recent president who took office while three justices were 80 or older was George H. W. Bush — they were Harry Blackmun, William Brennan and Thurgood Marshall. During his one term, Brennan and Marshall retired and were replaced by David Souter and Clarence Thomas, respectively.
Control of the Senate — up for grabs in 2014 and again in 2016 — will also play a crucial role as the majority party has effective veto power over any nominee. That’s why Obama urged a fundraiser for Senate Democrats’ campaign arm to keep the chamber in his party’s hands.
“[W]e’re going to have Supreme Court appointments, and there are going to be a whole host of issues that many people here care about that are going to be determined by whether or not Democrats retain the Senate,” Obama told donors.
The White House clarified that the president wasn’t basing his comment on any inside knowledge about the intentions of Ginsburg (who has faced liberal pressure to retire before Obama’s term is up) or another member for that matter. “The President’s comments were meant to convey the important role the Senate would play in the event of a Supreme Court vacancy. They were not in reference to a specific vacancy,” said a White House spokesperson.
The Supreme Court tends not to be an issue in presidential campaigns as candidates typically don’t discuss the ideological import of such appointments, usually promising only that they’ll nominate judges who faithfully interpret the law. But if past is prologue, nominees by a future president are likely to have different approaches to the law depending on his or her party. All of which suggests the Supreme Court is shaping up to be the sleeper issue of 2016.