Every four years we hear commentators say that the upcoming elections will be of great importance. However, the 2016 Presidential and Senatorial election may well be absolutely pivotal. Those elections could well affect the political climate for an entire generation or more, not only because they will determine whether the Republicans or the Democrats will control the executive branch and half of the legislative branch of our government, but also because they will probably decide whether conservatives or liberals will control the third branch of government, the Supreme Court, for years to come.
Assuming that there are no changes to the Supreme Court between now and then, when the next President takes office in January of 2017, the oldest Justice will be 83. The next two oldest will be 80 and a fourth Justice will be 78. The next oldest justice will be a relatively young 68. While Supreme Court Justices are appointed for life, of the last 11 Justices who left the court, 10 retired. Only Justice William Rehnquist died in office at the age of 81. The average retirement age for other ten Justices was 79 years old.
While it certainly seems possible that at least one of the Justices will retire or will (unfortunately) die in office during the new President’s four year term, we need to keep in mind that based on recent history the next President might well serve for eight years. Of the last five Presidents, starting with Ronald Reagan, only one did not serve two terms – George H. W. Bush. If all of current Justices were to successfully remain on the bench during both of the next President’s two terms, the oldest five would 91, 88, 88, 86, and 76 years old at the end of his or her second term. So it is very possible that as many as four or more new Supreme Court Justices will be appointed by the next President. Let’s explore how the replacement of the each of the oldest Justices could change the political landscape of the court.
The oldest Justice is Ruth Bader Ginsburg who was nominated by President Bill Clinton June 14, 1993 to fill the seat vacated by retiring Justice Byron White. She was born in 1933 so she is the Justice who will be 83 when the next President takes office and who would be 91 if she remains on the court for the next eight years.
While Ginsburg seems to be in decent shape for her age, she has had some serious health scares in the past. In 1999 she was diagnosed with colon cancer. She had surgery and underwent radiation treatments and chemotherapy. In 2009 she had a real scare being diagnosed with pancreatic cancer, one of the deadliest forms of the disease . Fortunately the condition was discovered early and surgery apparently dealt effectively with that cancer as well. Later that same year she was admitted to the hospital for light headedness which was apparently associated with iron deficiency. In the fall of 2014 she had a stent placed in one of her coronary arteries after experiencing chest pains while exercising.
Ginsburg has been an active member of the liberal block of the Supreme Court. Should she be the only Justice to retire or die during the next Presidents four or eight year term, the best scenario for progressives is for the court’s political landscape to remain unchanged with four liberal Justices, four conservatives, and one swing vote, Anthony Kennedy. Of course, that outcome would require the election of a Democrat to the White House. On the other hand, the election of a Republican President would mean that the person nominated would probably assure conservative dominance of the court with five reliable conservative votes. Ginsburg might be able to remain on the court for the first four years of a Republican President’s term in office, but also remaining on the bench for the following four years if he or she is reelected becomes problematic.
Antonin Scalia was nominated by President Ronald Reagan in 1986 when Chief Justice Warren Burger retired. He was born in 1936 so he will be 80 when the next President takes office and would be 88 were he to remain on the court for the next eight years. Scalia has no known health problems, but the life expectancy of a man who is currently 79 is 8.6 years. In addition Scalia, who is the intellectual leader of the court’s conservative block, has said several times that he will retire as soon as he loses a step.
The election of a Republican President is critical if conservatives want retain any kind of control of the Supreme Court should Scalia decide to retire or should he die in office during the next President’s four or eight year term. Should Scalia leave the court it would have the opposite affect of the loss of Ginsburg. The election of a Democratic President would give the progressive block five solid votes to the three solid votes for the conservatives with Anthony Kennedy no longer in the position of breaking a tie. In the same situation, the election of Republican would at best leave the court in the same situation as today with Kennedy still able cast the deciding vote.
The aforementioned Anthony Kennedy was also nominated by President Ronald Reagan in 1988, two years after he nominated Scalia when Chief Justice Warren Burger retired. Scalia was also born in 1936 so he too will be 80 when the next President takes office and would be 88 if he were to remain on the court for the next eight years. Kennedy has some heart problems in 2006 when he was 70 and had a stent inserted into one of his coronary arteries. Doctors found no evidence of heart damage and the condition has not been known to reoccur. However, theoretically, like Scalia who is the same age, Kennedy’s life expectancy is not favorable for remaining on the court through the new President’s eight year term, especially if health issues should encourage him to retire early.
Anthony Kennedy has indeed been the swing vote on the Supreme Court; in the 23 decisions in which the justices split 5-to-4, Kennedy was in the majority in all but five. However, he has voted more reliably with the four man conservative voting block. Of the Court’s 5–4 decisions which were decided strictly along ideological lines, Kennedy joined the conservative wing of the court 11 times and with the liberals only 5 times. However, lately he has voted with the liberal block on two the most important decisions of the present court – granting a constitutional right to same-sex marriage and joining Justice Roberts in beating back the recent conservative attack on the Affordable Health Care Act.
Should Kennedy be the only Justice to leave the bench during the next Presidents time in office, that President will be able decide the political leanings of the Supreme Court. A Democratic President would leave the progressives in charge 5-4 while a Republican President would give the majority to the conservatives by the same margin.
The fourth oldest Justice is Stephen Breyer who was nominated by President Bill Clinton in 1994, to fill the seat vacated by retiring Justice Harry Blackmun. Breyer was born in 1938 so he will be 78 when the next President takes office and he will be 86 if he remains on the court for the following eight years. Breyer is not known to have any health problems, but his love of bicycling has put his life in danger in the past. After he was nominated to the Supreme Court in 1994 his bike was hit by a car. He sustained multiple injuries including a broken collar bone, several broken ribs, and a punctured lung. He recovered fully, but in 2013 he was injured in a fall from his bike and required hospitalization and surgery to repair an injured shoulder.
Justice Breyer votes fairly consistently with his liberal colleagues and has very seldom strayed to vote with the conservatives. If Breyer were the only Justice to retire or die during the next four to eight years, and if the country elects a Democratic President in 2016, he/she will only be able to maintain the status quo on the court. On the other hand, a Republican President would be able to give the conservative a solid five vote majority.
Justice Breyer statistical life expectancy at the time that the next takes office will be 9.2 years so at least on average he is likely to be able to remain on the court should he choose to do so through the next Presidents time in office whether that is four or eight years. However, if he follows the lead of most of his recent predecessors he will probably retire sometimes during that time four or eight year period.
The other five Justices are relatively young by comparison. Clarence Thomas is the oldest of this younger group; he is 67. Samuel Alito is 65, Sonia Sotomayor is 61, John Roberts is 60, and Elena Kagan is the youngest of the group at 55. These five could in all likelihood remain on the bench through the next President’s time in office if they choose to do so. However, it is possible that one or more of this group could choose to retire during that period.
Most of the early Supreme Court Justices died in office, but that seldom happens any more; most retire from the bench. The average retirement age has risen to 78.6 years old, but that average can be misleading because recently the age at which Justices have retired has varied greatly. The last Justice to leave the bench was David Souter who retired when he was 70. Sandra Day O’Connor was 76, while John Paul Stevens was 90. In addition both John Roberts and Sonia Sotomayor, two of the younger Justices, have medical conditions which could be become serious. Sotomayor has type 1 diabetes which requires her to monitor her blood sugar and take insulin while Roberts has had a couple of seizure in public. These episodes have experts suspecting that he has epilepsy or some other type of seizure disorder. Both conditions are controllable with medication, but could also be factors that could lead to early retirements.
While it is possible that one or more of the younger group of five justices could leave the bench during the next President’s time in office, let’s concentrate on the more likely scenarios where one or more of the four oldest justices would retire or die in office during that time period. Of these four oldest Justices, two are members of the liberal voting block, one is a member of the conservative voting block and the other, Kennedy, is of course the swing vote.
We have already touched on outcomes if each four is the only one to retire or die in office during the next President’s term. However, it gets a bit trickier if two Justices were to leave the bench and two were to remain on the court. I have run through the possible combinations. (You can run the combinations yourself if you wish to verify.) There are six possible combinations of two of the four oldest Justices leaving the court. With a Republican President nominating replacements, for 3 of those 6 combinations the result would be that the conservatives would have a solid 6 to 3 majority. For the other three combinations the conservatives would have a solid 5 to 4 majority. So regardless of which of two of the four oldest Justices leave the court, with a Republican in the White House the conservatives will rule the Supreme Court.
If a Democratic President is elected in 2016 and any two of the four oldest Justices leave the bench during his or her tenure, the results are not as clear cut. For 1 of the 6 combinations the result would be that the liberals would have a solid 6 to 3 majority. In 4 of the 6 combinations the liberals would have a solid 5 to 4 majority, and in 1 of the 6 combinations the voting blocks would remain as they are today with Kennedy still casting the swing vote. That combination of course is the one where Ginsburg and Breyer are ones to retire. In that case a Democratic President would be simply nominating two liberals to replace two other liberals and the voting blocks would remain the same – four liberals and four conservatives with Kennedy still casting the deciding vote in 5 to 4 decisions.
If three of the oldest Justices were to leave the court, there are four different combinations to consider. In this situation regardless of which three oldest Justices leave the court, the nominations of Republican President would give the conservatives a solid 6 to 3 majority. For a Democratic President 2 of the 4 combinations would give the Liberals would have a solid 6 to 3 majority and for the other 2 combination the liberals would have a solid 5 to 4 majority.
If all Justices were to leave the court during the nest President’s time in office, the situation is simplified. A Republican President could install a solid 6 to 3 conservative majority and a Democratic President could ensure that the liberals have a solid 6 to 3 majority.
The bottom line is that the incoming President will very likely have an opportunity to nominate one or probably more Supreme Court Justices during his or her time in office. Assuming that that the President’s nominee or nominees are relatively young, the President we elect in November of 2016 will have excellent chance to insure that either the conservative or the liberal voting block on the Supreme Court will be in the majority for many years to come.
However, there is another factor involved here. While the President has the power to nominate Supreme Court Justices, it is up to the Senate to ratify those choices or not. So it matters whether the Republicans can maintain their majority in the Senate after the 2016 elections. In the past here have been cases where the Senate has rejected the President’s nominee or the President has withdrawn his nominee before that happened. So the party with the majority in the Senate has a great deal to say about which of the President’s candidates actually make it onto the court. Technically the Senate’s minority party can also filibuster the President’s choice to replace a Justice on the court, but that has never happened and neither party is likely to want to set that president.
If a Republican wins the Presidency and the Republicans maintain their majority in the Senate, any qualified candidate the President nominates is very likely to be confirmed. The same will be true for a Democrat in the White House and a Senate with the Democrats in the majority. Problems arise for the President’s nominees if the other party controls the Senate and this situation often changes the dynamics of the nomination process. Ultimately a Democrat in the White House facing a Republican controlled Senate may ultimately have to settle on a nominee who is more acceptable to the Senate Republicans. The same would be true for a Republican President if the Democrats control the Senate. This situation can result in less ideologically motivated candidates being nominated and confirmed whose judgments on the Supreme Court cannot be readily predicted in advance.
A case in point is that of Anthony Kennedy who was nominated by President Reagan after Reagan’s first nominee, ultra conservative Robert Bork, was soundly rejected by the Democrat controlled Senate and Reagan’s second nominee, Douglas Ginsburg, withdrew from consideration. Kennedy was confirmed by the Democrat controlled Senate by a vote 97 to 0 because he could be not easily pigeonholed ideologically based on his prior ruling in the lower courts. Kennedy of course did not become the reliably conservative vote on the court that Ronald Reagan expected.
So the bottom line is that both the upcoming Presidential election and those which will decide which party will control the Senate now and in the immediate future will in large part determine the future path the Supreme Court will follow. Congress has the power to pass legislation and the President can sign that legislation into law or veto it. However, it is the Supreme Court which ultimately decides whether we will continue to live under those established laws or not.
Cajun 7/27/15