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Bench Memos

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Obama vs. Romney on the Supreme Court—Part 1



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The topic of the Supreme Court has received very little attention in the presidential race. Neither Barack Obama nor Mitt Romney referred to it at all in his convention speech, nor did the matter come up in the first presidential debate. Evidently both candidates have concluded that they won’t win political points with the general public by talking about the Supreme Court. Perhaps each figures that his base is already energized on the issue, or that he can micro-target his message to that base, and perhaps each worries that he can’t deliver an effective narrative about the Court that resonates beyond his base.

Whatever the reasons for it, the silence certainly doesn’t correspond to the importance of the Supreme Court appointments that a re-elected President Obama or a newly elected President Romney may make in the next presidential term. In this post and one or two others, I’ll offer some general observations:

First: Control of the Supreme Court, perhaps for a generation, is very much up for grabs.

In general terms, the Court currently consists of four judicial liberals (Ginsburg, Breyer, Sotomayor, and Kagan), four judicial conservatives (Roberts, Scalia, Thomas, and Alito), and a ninth justice (Kennedy) who sometimes joins with the liberals and other times with the conservatives. (As I’ve explained before, I don’t think the term moderate, much less moderate conservative, captures Kennedy.)

The nine justices fall roughly into two age cohorts. Four justices are in the older cohort (ages 74 to 79): Ginsburg (born in 1933), Scalia (1936), Kennedy (1936), and Breyer (1938). Five justices are in the younger cohort (ages 52 to 64): Thomas (1948), Alito (1950), Sotomayor (1954), Roberts (1955), and Kagan (1960).

In other words, in the older cohort, there are two liberals, one conservative, and Kennedy, and in the younger cohort the conservatives have a three-to-two edge over the liberals.

It’s of course not a simple matter to accurately predict departures (voluntary or otherwise) from the Court. But there is a reasonable prospect that there will be one or two vacancies during the next presidential term, and it’s reasonable to expect that any such vacancies would come from the older age cohort.

As a hypothetical exercise, let’s assume that Ginsburg and Kennedy leave the Court during the next presidential term. If Obama is president and replaces them with liberals who are in their 50s, he will have established a liberal majority on the Court and he will also have created a four-to-three edge for liberals among the younger justices. By contrast, if a President Romney succeeds in replacing Ginsburg and Kennedy with relatively young conservatives, there will be a six-justice conservative majority on the Court, including a whopping five-to-two advantage in the younger age cohort, an advantage that might well ensure two decades of conservative dominance on the Court.

In my Part 2 post, I’ll address and assess the factors that might impair the ability of a President Obama to fill Supreme Court vacancies with judicial liberals or of a President Romney to fill Supreme Court vacancies with judicial conservatives.



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