It’s All Up in the Air: The Next Generation of the Roberts Court

We’re still almost nine months out from the 2016 American presidential election, but the quadrennial carnival is already in full swing. So far, everything from Bill Clinton’s behavior in the 90’s to John McCain’s war record has been touched on, not to mention particulars that are actually related to the current candidates. Is Jeb Bush too polite for the White House? Why does Ben Carson have to get off the campaign trail to do his own laundry, when nothing about his person suggests that he knows how a washing machine works? Are either Ted Cruz or Donald Trump in fact, as their looks and general demeanor would suggest, escaped cartoon villains from a movie where the hero is a dog? All of this is important, but the recent passing of Supreme Court justice Antonin Scalia has pointed a big glow-in-the-dark arrow towards arguably the most lasting part of any presidential legacy, which had barely been touched on before: What is the future of the Supreme Court going to look like?

Since the 1960’s, the average retirement age of Supreme Court justices has been 79 years old. Come 2017, the year when the next American president will be inaugurated, three of the justices currently on the bench will be at or above that age. If Obama’s nominee for a replacement of Scalia does not come through before the end of his presidency, and assuming the next president takes the White House for two terms, every available piece of evidence would suggest that he or she would get to make at least four nominations to the Supreme Court. The last person to have this many appointments during their term was Richard Nixon. Right now, the five most recent Presidents each have two nominees on the Court, except for Ronald Reagan and George Bush the elder, who only have one each. Four is, in that light, a very significant number.

The Justices who are most likely to need replacement during the next two presidential terms have varying profiles. Ruth Bader Ginsburg and Stephen Breyer are both solid progressive votes and both Clinton nominees. There’s Anthony Kennedy, the storied swing vote in some notable cases, including Obergefell v. Hodges – the case that legalized same-sex marriage across the nation last summer – but still most likely to side with the conservative wing. Last but not least there’s the late Antonin Scalia, very conservative and father of the originalism school of constitutional law. Both Scalia and Kennedy are Reagan nominees, which tells you something about the staying power of the presidential legacy on the judiciary branch.

Replacing any one of these justices is no small thing. During George W. Bush’s time in office, he replaced the steadily-moving-to-the-left Sandra Day O’Connor with archconservative Samuel Alito, which seriously altered the Court’s balance. A number of cases, on topics from campaign finance to abortion to affirmative action, have been essentially reheard under this new court, with outcomes changed because the balance of power now leans towards the right. For instance, in 2003, the Rehnquist Court (which included O’Connor) upheld the so-called McCain-Feingold Bill, which regulated the way money is raised and spent in political campaigns. The court ruled that the regulations did not violate the First Amendment. A little more than six years later, the Roberts Court (now with Alito) struck it down, with basically the opposite reasoning – they likened spending on political campaigns to speech, making the McCain-Feingold Bill a violation of the First Amendment. Both rulings were 5-4 decisions, thus the replacement of O’Connor made all the difference.

During most of Obama’s Presidency liberals have been urging Ruth Bader Ginsburg to retire in order to ensure that her seat is taken over by an equally fiery progressive. She has continually refused. Since the 2014 Republican takeover of the Senate, that has certainly seemed like a more reasonable position. While Obama may set his sights high and nominate a progressive Justice, it’s all for naught if the Senate doesn’t approve the nomination. In that light, if the next President is a Democrat they’re likely to be in a better position to properly fill RBG’s seat. The early signs for the 2016 Senate race point to, if not a Democratic takeover, at least a diminished Republican majority. For that reason, the same might be true for Antonin Scalia’s replacement.

Yet despite its very weight, the future of the Supreme Court has yet to be an overarching issue on the campaign trail. Prior to the news about Scalia’s death, the Court had mostly been used as a rhetorical punching bag from both sides. Bernie Sanders and Hillary Clinton have both been critical of Citizens United, the previously mentioned case that deregulated monetary contributions to political campaigns. They’ve both indicated that a potential Supreme Court nominee of theirs would have to be committed to overturning it. Ted Cruz in his turn has focused his rage on undermining the landmark Obergefell v. Hodges by introducing a constitutional amendment banning same-sex marriage.

Even after Scalia’s death, there has been very little discussion of actual potential nominees. While various claims about the process of a nomination and what the historical precedent actually says about a President nominating a Justice in their last year in office, have been bandied about, concrete suggestions have yet to surface.

The judicial branch, and its very real effects on American civil life, has been virtually ignored for a long time. This despite the fact that 59% of voters in the 2012 election said that Supreme Court nominations were extremely or very important to their vote in that election. In that sense, Scalia’s suddenly open seat might contribute to bringing the Court to the more acute attention of the general public, and force a real conversation on an issue that usually takes a backseat to more sensational things.

Klara Fredriksson