Mournful violins are playing behind Linda Greenhouse’s NYT “Week in Review” article today, in which she posits a gloomy present–and probably a gloomier near future–for liberals who pin their hopes for policy change on the Supreme Court. For my part, I don’t know why the left should be so lugubrious about the term just past, considering a) what still survives of the Warren and Burger Court legacies of judicial liberalism, and b) how few Supreme Court appointments liberal presidents have made in the last forty years (exactly two, both of them Bill Clinton’s).
There’s much worth comment in Greenhouse’s article, but this particular assertion caught my eye:
Even if the Democrats win the White House and hold the Senate [in 2008], the court’s demographics are likely to trump politics. The average age of the four more liberal justices is 74; the five conservatives average a youthful (for federal judges) 61, with Chief Justice John G. Roberts Jr. the youngest at 52.
There are a couple of curious things about this account. First, these averages obscure more than they reveal. We should, as my social scientist pals say, disaggregate the data (there are only nine of these people, after all). Second, remember that justices generally depart one at a time (2005 was a fluke with Chief Justice Rehnquist’s death closely following Justice O’Connor’s retirement), and in a Court this closely divided, any single departure can make a world of difference. Here are the justices in order of seniority of service (not of age) with the chief listed first, and their birth years following:
Roberts 1955Stevens 1920Scalia 1936Kennedy 1936Souter 1939Thomas 1948Ginsburg 1933Breyer 1938Alito 1950
Leaving aside Justice Stevens, who is the Court’s only octogenarian, there are five justices born in the 1930s, only three of them solid liberals (including the two youngest in this group) and I would be hard put to predict that any of them, even Justice Ginsburg with her reported health troubles, would leave the Court sooner than any of the others. And suppose Democrats control the presidency and the Senate when one of the liberals retires? Then they have an opportunity to maintain the status quo, which is really not that bad for them. But now suppose that Kennedy or (worse yet) Scalia goes when Democrats control the appointment process? Then the left achieves a great victory. So why the gloomy scenario painted by Greenhouse?
Assume, as a bad case for Republicans, the not unlikely future of an eight-year Democratic administration accompanied by a Democratic Senate. By the end of the year 2016 only Roberts, Thomas, and Alito will still be younger than 70. Kennedy and Scalia will both be 80 that year. It would not be highly improbable to see as many as six of the current justices replaced over those eight years, if all are still serving on inauguration day 2009. Roberts, Thomas, and Alito could be a pretty lonely crew if all those seats are filled by liberals.
Think about that again. The next president has the opportunity to appoint as many as half a dozen justices to the Court. Contrary to Greenhouse’s account, the future is wide open for both parties, and the 2008 election looks more important than ever.