Monday, October 6, 2008

Tilting the Courts

Erwin Chemerinsky at speculates what the judicial landscape could look like if John McCain wins the election.

McCain has said that he wants to appoint conservative justices like Chief Justice John Roberts and Associate Justice Samuel Alito. Obama voted against confirmation of both of those individuals and has said that he would pick liberal justices like Ruth Bader Ginsburg and Stephen Breyer.

As a result of its current makeup, however, the Supreme Court is likely to tilt only in one direction after this year. Simply put, the November election may well determine whether the court becomes significantly more conservative or its ideological balance remains roughly the same. And a McCain-shaped Supreme Court, pushed farther to the right, could have dramatic and long-lasting consequences for the rights of Americans.

Even if Obama wins the election, it is far less likely that the Supreme Court will become more liberal in the near term. This is because any vacancies on the court between Jan. 20, 2009, and Jan. 20, 2013, are likely to come among the three most liberal justices. John Paul Stevens is 88 years old. Although he is in good health, it seems unlikely that he will still be on the court at age 93 in 2013. Ruth Bader Ginsburg is 75. Perhaps because she is frail in appearance there is always speculation that she might step down. There is a widely circulated rumor that David Souter (now 69) wants to retire and go home to New Hampshire.

Across the ideological divide, the picture is much different. John Roberts turned 54 in January of this year. If he remains on the court until he is 88, like Stevens, he will be chief justice until the year 2042. Neither Clarence Thomas nor Samuel Alito has yet to celebrate a 60th birthday. Antonin Scalia and Anthony Kennedy are 72. The best predictor of a long life span seems to be confirmation for a seat on the Supreme Court. Thus, these five justices likely will be on the Court throughout the next presidential term and perhaps for an additional decade or more.


It is not only the future of the Supreme Court that is at stake with the November election. The president also selects judges for the many federal district courts and the 13 federal circuit courts of appeal, the last stop before the Supreme Court. These judges, too, have life tenure and often remain on the bench for decades. Most of the 13 circuit courts of appeal currently have a Republican majority, but on most it is by a small margin. A McCain presidency would likely ensure substantial Republican majorities in every circuit, whereas an Obama presidency would offer the chance to shift some circuits back to control by judges selected by a Democratic president. This balance, too, is important; because the Supreme Court agrees to preside over only a fraction of cases moving through the federal court system each year, the rulings of the circuits often play an important role in shaping federal law.

There are probably many reasons why the future of the Supreme Court has not been a prominent issue this election year: the understandable focus of voters on the financial crisis, the ailing U.S. economy and the protracted war in Iraq, and the sense that swing voters are unlikely to base their selection on the issue of judicial nominations.

But the reality is that Supreme Court justices often serve for decades. (Justice Stevens was appointed by President Gerald Ford in 1975.) The court decides countless basic questions concerning the structure of government and individual rights. Voters may well want to consider that John McCain and Barack Obama offer starkly different choices as to the direction of constitutional law, now and for decades to come.

Which is why it really does matter what the selection of Sarah Palin as the vice presidential running mate tells us about John McCain’s judgment. If she is his idea of the most qualified person to be one heartbeat away from the presidency, can you imagine who he might choose to sit on the Supreme Court?