What Will the Outcome of the 2008 Election Mean for the Supreme Court?Why One Outcome Could Change the Court Profoundly; the Other, Not at All

By EDWARD LAZARUS

Thursday, Jul. 19, 2007

Now that the Supreme Court has recessed for the summer and last Term's decisions have been preliminarily digested, it is only natural for Supreme Court commentators to start looking over the horizon to see where the Court might be headed next.

In this vein, Tom Goldstein, a leading Supreme Court advocate and the founder of Scotusblog (as well as my law partner), has kicked off a robust debate in the blogosphere about what the 2008 election will mean for the Supreme Court.

The answer is either a whole heckuva a lot, or almost nothing at all - depending of course on who wins the election.

The First Question: Which Justices Might Retire During the Next Presidential Term?

Let's start with the always perilous question of which justices might retire in the first term of the next President. To begin, it's worth noting that in the past, many retiring Justices have deteriorated quickly after stepping down from the bench - and that surely is a disincentive for any current Justice contemplating such a move. At the same time, retirements are certainly possible.

On this score, the conventional wisdom has focused on Justice John Paul Stevens, the 87-year-old leader of the Court's more liberal wing. Robust as he is, it seems improbable that even this mentally-sharp avid tennis player will stay on the Court another five years, even if a conservative wins the presidency.

Next on the potential retirement list has been Justice Ruth Bader Ginsburg, now 74. Ginsburg is a cancer survivor who, despite her formidable intellectual powers, sometimes looks like she'd fall over in a stiff wind. In my view, however, unless heath issues force Ginsburg off the Court, she's likely to stay for the foreseeable future.

This term, Ginsburg finally found her voice as a Justice - as the Court's lone woman fighting for the equality and autonomy of all women. She wrote powerful dissents in a case upholding harsh rules for bringing claims of gender-based pay discrimination, and another upholding a federal ban on partial-birth abortion even though it did not include a health-of-the-mother exception.

Justice Ginsburg told USA TODAY that, with Justice O'Connor gone, "The word I would use to describe my position on the bench is lonely." She added, "Neither of us ever thought this would happen again. I didn't realize how much I would miss her until she was gone." Yet this powerful advocate for women's rights won't be defeated by loneliness alone. It seems highly unlikely that, barring very serious health issues, she would voluntarily leave the Court until there were to be another woman justice (maybe two) to pick up that mantle. Indeed, I think Ginsburg would relish the chance to share the bench with another female justice for a few years - and might even feel some obligation to do so.

The wild card here (as Tom Goldstein astutely notes) is Justice David Souter, yet another relatively liberal justice. Although only 67 (which seems to be the "new 40" for Supreme Court justices, in the sense that 40 is proclaimed to be the "new 30" for health-conscious Generation X-ers), Souter does not care for Washington, and does not seem to enjoy his job much. In addition, it has been reported that Souter, unlike so many others appointed to the Court, has never viewed the job as necessarily one that will consume the remainder of his working life. And at least since Bush v. Gore, he has seemed increasingly frustrated and disillusioned with the Court's more conservative (and, in the case of Bush v. Gore, less-principled) direction.

Accordingly, it is not hard to imagine Souter stepping down, especially if a Democrat wins in 2008. On the other hand, if Stevens retires, Souter will become the senior member of the liberal wing. With that seniority, will come the prerogative of writing a lead opinion (either the majority or the dissent) in almost every major case. Stevens has used this assignment power very effectively, to build a substantial legacy for himself. Perhaps Souter would be enticed to stay on the Court by the prospect of following suit.

It appears unlikely that any of the other justices (Chief Justice Roberts and Justices Alito, Breyer, Kennedy, Scalia, and Thomas) would contemplate retirement before the 2012 election. The oldest of these six is Justice Scalia, at 71, but he shows no signs of slowing down, and surely is eager to pursue further the Court's rightward swing. Justice Anthony Kennedy, at 70, is the pivotal justice in almost every significant case - and seems to relish the enormous power associated with this role. The other Justices, too, have miles to go before they rest.

In sum, the next president is almost certain to get at least one Supreme Court appointment, and may get as many as three. It is also virtually certain that every retiring justice will belong to the Court's liberal wing. Against this backdrop,

what effect any retirement will have on the Court depends entirely on who wins the 2008 Presidential election.

The Potential Effect of a Republican Win on the Supreme Court

If a Republican wins, the Court will likely take yet another significant step further to the right, even if the next president gets only one appointment. Cases that currently result in 5-4 decisions, with Justice Kennedy as the "swing vote," may either come out the other way (on topics where Justice Kennedy swung to the left), or come out the same way, but more aggressively so, fueled by a new 6-3 conservative bloc including Kennedy. Moreover, the rightward move will only be stronger and more certain if the Republican candidate both wins and gets more than one appointment due to multiple retirements.

Indeed, if one of the current liberal justices (and, again, all three of the likely retirees are liberal) is replaced by another conservative of the Roberts/Alito stripe, truly radical change would become a distinct possibility. Roe v. Wade would be in real jeopardy. So would Lawrence v. Texas, which gave constitutional protection to persons engaged in private, consensual acts of gay sex. So would whatever is left of affirmative action after the recent pupil assignment decisions. So would the exclusionary rule in criminal cases as well as, perhaps, Miranda v. Arizona. So would the ban on public school prayer established by Engel v. Vitale, now more than 40 years old.

No less important, the Court could easily reverse course on the recent decisions rejecting claims of unreviewable executive authority - whether in the prosecution of the war on terror, or in resisting Congressional investigations or other Congressional oversight of the Executive Branch. The Court could also erase what is left of Congress's power to reform the campaign finance system.

A few caveats must be noted: A Democratic Senate might prevent the appointment of a hardcore conservative, though recent history suggests otherwise. Also, Roberts, Alito and any new appointee(s) might decide to respect the Court's precedents, despite their own jurisprudential preferences, though once again, recent history instills no great confidence.

Overall, however, the Court is at a tipping point between a significant move rightward and a radical move rightward. A Republican winner in 2008 will have the power to push the Court over this edge.

The Effect of Democratic Victory in 2008 (and/or 2012) Upon the Supreme Court: Likely Very Minor

A Democratic victory in 2008, in contrast, will have no commensurate impact. Most likely, a Democratic president will find herself or himself replacing relatively liberal justices with likeminded nominees. The Court might well become more diverse, as there are highly-qualified Hispanic, Asian, African-American, and female candidates who might be tapped. But its ideological make-up would not change.

Moreover, the same observation holds even if a Democrat wins again, in 2012. In 2016, Scalia and Kennedy, the two oldest conservatives, will still be younger than were Justices William Brennan, Thurgood Marshall, and Harry Blackmun when they retired. It's a realistic assumption that neither Scalia nor Kennedy would have much interest in voluntarily stepping aside during a Democratic administration. Thus, as a practical matter, in order to meaningfully reverse the Court's current conservative course, Democrats might very well have to win the next three presidential elections. The Democrats have not managed this feat since FDR won a third term in 1940.

To be sure, a Democratic presidential victory (or two) would go a long way towards creating greater ideological balance on the federal courts of appeals, almost all of which are now dominated by conservatives. But at the Supreme Court, conservatism will be the order of the day for as far, historically, as the eye can see.

What Voters Should Keep in Mind in 2008

Of course, it is too soon to tell what will happen in the 2008 election. But one thing is clear: Conservative voters who are tempted to vote for a moderate Democrat, yet fear that the Supreme Court will veer left as a result, have no reason to worry. Conversely, liberal voters who are tempted to vote for a moderate Republican should know that if such a candidate wins, the Supreme Court may well veer sharply rightward.

What if the Democrats do take the White House in 2008, and also increase their slim majorities in Congress -- especially in the Senate, where many more Republicans than Democrats are up for re-election? The Court will still be ripe for a rightward turn in 2012 or 2016, as I mentioned above. Meanwhile, during the new Democratic President's first term, an unsettling conflict in our body politic may well emerge.

As in the 1930s, a liberalizing national politics may bump up against a deeply and possibly intractably conservative Supreme Court.

When this configuration occurred in the 1930s, a political meltdown was famously averted by the "switch in time that saved nine" - when, in the face of FDR's court-packing threats, Justice Owen Roberts switched sides, and started voting to approve previously-stymied New Deal economic reforms.

Who knows what might happen this time around? But one thing is certain. In the past, arguments for greater progressive reliance on the political branches, rather than the courts, have largely been based on democratic theory. Now simple necessity must be added to the mix: Unless we see three Democratic victories in a row, the Court will probably remain majority-conservative for the next generation at least.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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