Electing a New President and a New Supreme Court Majority

The stakes in this year’s election are higher than normal because the next president may have the unusual opportunity to impact the ideological direction of the Supreme Court, untypical of any one presidential term.

During the next presidential term, starting in January 2013, of the nine Supreme Court justices, “three of the justices will be in their 80s,” notes Clint Bolick, author of the new book, “Two-Fer: Electing a President and a Supreme Court.”

“[W]hoever is elected in November may have the rare chance to reinforce or alter the courts balance,” he said.

And with Supreme Court rulings like Citizens United in 2010 – and perhaps the upcoming decisions on Obamacare and the federal government’s lawsuit against Arizona’s illegal-immigration law –  hinging on the opinion of a single justice and setting longstanding precedents, the court’s balance ought to be top of mind for voters in November.

There is no guarantee when a justice will retire nor can they be forced to do so. Supreme Court justices are constitutionally guaranteed a life term and can serve for as long as they wish to.

Of those justices reaching their eighties in the next presidential term, two of the three are regarded as being on the conservative side of the court. Among the liberals, Justice Ruth Bader Ginsburg turns 80 in 2013. Conservative Antonin Scalia, 76, turns 80 in 2016. Anthony Kennedy, often portrayed as the swing vote on the typically divided court, turns 77 this summer and 80 in 2015.

President Barack Obama was able to make two Supreme Court nominations is his first 16 months in office, Justices Sonia Sotomayor in 2009 and Elena Kagan in 2010. Should he be reelected this year, he may have the ability to shift ideological balance of the court, which most people now believe to be generally a 5-4 conservative majority. Conversely, if a Republican were to win the White House, he would conversely have the same opportunity.

The president is first and foremost the commander in chief, that is to say, most of the autonomous powers of the presidency are over the military and foreign policy. Domestically, because Congress is assigned the power to make laws, the president’s most significant authority is in nominating justices to the Supreme Court, a power, Bolick notes, often overlooked in terms of its importance when selecting a president.

Bolick argues that in presidential campaigns, the power to appoint federal judges and nominate high court justices plays almost an “invisible role,” though it gives the president the ability to affect generations of Americans. The court-appointment authority is even more powerful today than it had been in previous generations.

“The average term length for a Supreme Court justice is 25 years,” according to Bolick. Also, justices are being appointed at younger ages and living much longer, “so life tenure is a bigger prize than it was when the Constitution was ratified.” For example, Justice Clarence Thomas was 43 when he was appointed by President George H.W. Bush in 1991. On the current court, Justice Kagan is the youngest member, having just turned 52 on April 28.

In the past few years the Supreme Court has decided some pivotal cases down ideological lines in 5-4 rulings. One was the Citizens United decision in 2010 when the court ruled that corporations and unions had First Amendment rights allowing them to spend unlimited money on political speech.

This year, many legal scholars suspect the court will align in similar fashion against Obamacare, or at least the health care law’s mandate that all Americans buy government-approved health insurance. And just last week, the justices gave Solicitor General Donald Verrilli a flogging during oral arguments for the Obama administration’s lawsuit against Arizona’s controversial illegal-immigration law.

If the balance of ideology of the Supreme Court were shifted even by a single vote, the social and political impacts would be vast.

In the presidential term following the 2016 election, Justice Stephen Breyer will turn 80 (Aug. 15, 2018), meaning whoever is in the Oval Office the next two terms could potentially nominate nearly half the court.

This year’s presidential election and the next one may, in fact, be “two-fers,” allowing the American electorate to simultaneously choose a president and influence the future for generations of Americans whose lives are affected by rulings from the Supreme Court.

(Brian Calle is a columnist and editorial writer for the Orange County Register and editor of Calwatchdog.com. Originally posted on his blog, Uncommon Ground.)